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BY  THE  SAME  AUTHOR. 


LECTURES  ON  THE  EARLY  HISTORY  OF 
INSTITUTIONS.    8vo,  cloth,  $3.50. 

ANCIENT  LAW.  Its  Connections  with  the  Early 
History  of  Society,  and  its  Relation  to  Modern 
Ideas.  Third  American  from  the  Fifth  London 
edition.    8vo,  cloth,  $3.50. 

VILLAGE  COMMUNITIKS  IN  THE  EAST  AND 
WEST,  to  which  are  added  other  LECTURES, 
Addresses  and  Essays.    Svo,  cloth,  $3  50. 


BY   THE  LATE  JOHJV  AUSTIN. 

LECTURES  ON  JURISPRUDENCE;  or,  The 
Philosophy  of  Positive  Law.  By  the  late  John 
Austin,  of  the  Inner  Temple,  Barrister-at-Law. 
Abridged  from  the  larger  work  for  the  use  of 
students.  By  Robert  Campbell,  of  Lincoln's 
Inn,  Barrister-at-Law.    1  vol.  Svo,  $3.0x3. 


ANCIENT    L  AAV 


ITS  CONNECTION   WITH   THE  EARLY  HISTORY  OF 
SOCIETY,  AND  ITS  RELATION  TO  MODERN 
IDEAS 


BY  / 

HENRY  SUMNER  MAINE 

Member  of  the  Supreme  Council  of  India ;  formerly  Header  on  Jurisprudence  and  the 
Civil  Law  at  the  Middle  Temple,  and  Iterjius  Professor  of  the  Civil  Law 
in  the  University  of  Cambridge. 


WITH  AN  TNTBODUCTION  BY 

THEODORE  W.  DWIGHT,  LL.D., 

FBOFES80B    OP   MUNICIPAL  LAW,   COLUMBIA    COLLEGE,   NEW  YORK 


TniRD  AMERICAN— FROM  FIFTH-  LONDON  EDITION. 


NEW  YORK 
HENRY  HOLT  AND  COMPANY 


Eiitered,  according  to  Act  of  Coiirtpss,  in  the  j-ear  1864,  by 
CHARLES  SCRIBXER, 
In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Soothers 
District  of  New  York. 


John  F.  Trow  ft  Son,  Printers, 
•oj-ai3  East  mil  St.,  Nkw  York. 


PREFACE 

TO 

THE    FIFTH  EDITION. 


While  further  reflection  and  research  have  not 
led  the  Author  of  this  work  to  alter  his  views  on 
most  of  the  matters  of  which  it  treats,  he  has  con- 
vinced himself  that  the  opinions  expressed  in  the 
First  Chapter  on  the  difficult  and  still  obscure 
subject  of  the  origin  of  Customary  Law  require 
correction  and  modification.  He  has  attempted  to 
supply  a  part  of  the  necessary  corrections  and 
modifications  in  a  volume  called  "  Village  Com- 
munities  in  the  East  and  West "  (London  :  Mur- 
ray, 1871).* 

H.  S.  M. 

London,  December,  1873. 

*  This  work  will  be  published  in  the  United  States  as  soon  as  tho 
next  edition  of  it  ia  called  for  in  England. — Am.  Pub. 


THE 


PREFACE 

TO 

THIRD  EDITION. 


The  Second  and  Third  Editions  of  this  work  have 
been  substantially  reprints  of  the  First.  Some 
few  errors  have,  however,  been  corrected. 

It  is  necessary  to  remind  the  reader  that  the 
First  Edition  was  published  in  1861.  The  course 
of  events  since  that  period  in  Russia  and  in  North- 
ern America  has  taken  away  much  of  its  applica- 
tion to  existing  facts  from  the  language  employed 
by  the  writer  on  the  subject  of  serfage  in  Russia, 
of  the  Russian  village-communities,  and  of  negro- 
slavery  in  the  United  States.  It  may  perhaps  be 
interesting  to  the  reader  to  observe  the  bearing  of 
the  changes  which  have  taken  place  on  the  argu 
intent  of  that  part  of  the  work. 

II  S.  M. 

Calcutta,  November,  1865. 


PREFACE 


TO 


THE    FIRST  EDITION. 


The  chief  object  of  the  following  pages  is  to  indi- 
cate some  of  the  earliest  ideas  of  mankind,  as  they 
are  reflected  in  Ancient  Law,  and  to  point  out  the 
relation  of  those  ideas  to  modern  thought.  Much 
of  the  inquiry  attempted  could  not  have  been  pros- 
ecuted with  the  slightest  hope  of  a  useful  result  if 
there  had  not  existed  a  body  of  law,  like  that  of 
the  Romans,  bearing  in  its  earliest  portions  the 
traces  of  the  most  remote  antiquity,  and  supplying 
from  its  later  rules  the  staple  of  the  civil  institu- 
tions by  which  modern  society  is  even  now  con- 
trolled. The  necessity  of  taking  the  Roman  I  j8  W  .'is 
a  typical  system  has  compelled  the  Author  to  draw 
from  it  what  may- appear  a  disproportionate  num- 
ber of  his  illustrations;  but  it  has  not  been  his 
intention  to  writ*'  a  treatise  on  Roman  .Jurispru- 
dence, and  he  has  as  much  as  possible  avoided  all 


vi 


PREFACE. 


discussions  which  might  give  that  appearance  to 
his  work.  The  space  allotted  in  the  Third  and 
Fourth  Chapters  to  certain  philosophical  theories 
of  the  Roman  Jurisconsults  has  been  appropriated 
to  them  for  two  reasons.  In  the  first  place,  those 
theories  appear  to  the  Author  to  have  had  a  much 
wider  and  niore  permanent  influence  on  the  thought 
and  action  of  the  world  than  is  usually  supposed. 
Secondly,  they  are  believed  to  be  the  ultimate 
source  of  most  of  the  views  which  have  been  pre- 
valent, till  quite  recently,  on  the  subjects  treated 
of  in  this  volume.  It  was  impossible  for  the  Au 
thor  to  proceed  far  with  his  undertaking,  without 
stating  his  opinion  on  the  origin,  meaning,  and 
value  of  those  speculations. 

H.  S.  M 

London,  January,  18GI. 


CONTENTS 

V. 

PAOB 

INTRODUCTION,       ......  ...    IX — lxix 

cnAP. 

I.  Ancient  Codes,  1 

II.  Legal  Fictions,   20 

III.  Law  of  Natube  and  Equity,  42 

IV.  The  Modeen  IIistoey  of  tiie  Law  of  Natube,     .  70 

V.  Piumitive  Society  and  Ancient  Law,       .      .  .109 

VI.  The  Eaely  IIistoey  of  Testamentaey  Succession,  166 

VII.  Ancient  and  Modeen  Ideas  bespeoting  Wills  and 

Successions,  209 

VIII.  The  Eaely  IIistoey  of  Peopeety,   ....  287 

IX.  TnE  Eaely  Hibtoby  of  Contbaot,      ....  295 

X.  The  Eaely  IIistoey  of  Dklict  and  Chime,  .  .  855 
Index,  887 


INTKODUCTION. 


The  work  of  Professor  Maine  on  "Ancient 
Law  "  is  almost  the  only  one  in  the  English  lan- 
guage in  which  general  jurisprudence  is  regarded 
from  the  historical  point  of  view.  The  text  books 
prepared  by  lawyers  both  in  England  and  this 
country,  have  only  aimed  to  present  a  view  of  legal 
history,  so  far  as  it  was  necessary  for  practical  pur- 
poses. The  professed  treatises  on  the  "  History  of 
the  English  Law,"  such  as  those  of  Reeves  and 
Crabbe,  make  no  claim  to  philosophical  deductions, 
and  while  the  former  is  especially  accurate  and  re- 
liable, it  is  written  in  a  manner  altogether  dry 
and  uninteresting.  Mr.  Maine's  work  is  vitalized 
throughout  by  the  true  spirit  of  philosophy.  It  is 
not,  however,  a  philosophy  which  bases  itself  on  an 
inspection  of  the  present  condition  of  society.  It  is 
founded  on  facts  derived  from  the  most  patient  and 
thorough  historical  investigation.   It  id  to  be  hoped 


s 


INTRODUCTION. 


that  lie,  or  some  other  equally  competent  person, 
will  do  that  for  the  English  common  law,  which  has 
already  been  done  in  so  masterly  a  manner  for 
"  ancient  law."  It  is  a  remarkable  fact  that  many 
of  the  early  books  of  the  common  law  are  nearly 
inaccessible  to  the  student.  Some  of  them  are  in 
manuscript,  hidden  away  in  legal  libraries.  Those 
which  are  printed  are  composed  in  a  language  now 
obsolete,  and  with  abbreviations  which  the  general 
scholar  does  not  easily  understand.  Mr.  "Wallace, 
of  Philadelphia,  in  his  learned  work  on  the  Eng- 
lish Reporters  has  pointed  out  that  the  Parliament 
of  England  could  do  no  more  important  work,  than 
to  reproduce  in  an  accessible  and  intelligible  form, 
these  antique  works  which  illustrate  the  early  com- 
mon law.  He  has  truly  said,  that  no  philosophical 
knowledge  of  the  law  can  ever  be  had  without  ref- 
erence  to  its  origin  and  history.  Has  not  the  time 
arrived  when  the  materials  for  a  comprehensive 
view  of  the  common  law  should  be  furnished  to  the 
scholars  of  England  ? 

Mr.  Maine's  work  may  be  said  to  consist  of  two 
parts ;  the  first  part,  embracing  four  chapters,  con- 
tains the  philosophy  of  legal  history.  No  more 
accurate  and  profound  generalization  was  probably 
ever  made  in  jurisprudence,  than  that  which  sums 
up  the  agencies  of  legal  progress :  Fiction,  Equity, 
and  Legislation.  Its  truth  strikes  the  attention  of 
one  versed  only  in  the  English  common  law.  The 
tii>t  two  agencies,  especially,  accomplished  all  the 


INTRODUCTION.' 


XI 


eaily  advancement  in  that  system  of  jurisprudence 
It  is  through  them  that  public  opinion  gradually 
modified  the  law.  Without  them,  the  English  nation 
would  have  remained  stationary,  or  have  been 
driven  to  a  revolution.  Sometimes  fiction  affects 
the  law  without  consciousness  on  the  part  of  the 
judge.  Instances  of  this  are  given  by  Mr.  Maine. 
At  other  times,  the  judiciary  cover  their  intent  to 
alter  the  law  with  a  thin  and  transparent  veil  of 
fiction.  When  the  English  Parliament  had  passed 
the  Statute  of  Entailments,  by  which  the  nobility 
expected  to  secure  their  landed  possessions  to  their 
families,  the  judges,  who  did  not  sympathize  with 
the  legislature,  eluded  its  effect  by  a  fictitious  legal 
proceeding,  called  a  common  recovery.  It  came  to 
be  a  rule  that  no  express  words  could  be  used  in 
creating  an  entailment,  which  would  prevent  its 
destruction  by  this  pretended  action. 

It  was  an  early  complaint,  that  by  the  growth 
of  Equity,  the  "  heart  of  the  common  law  was  eaten 
out.1'  An  excellent  illustration  of  its  workings  is 
derived  from  the  law  of  trusts.  The  ancient  com- 
mon law  made  the  validity  of  a  conveyance  depend 
upon  a  visible  act.  The  owner  gave  the  intended 
purchaser  a  clod  of  earth,  or  other  symbol  of  pos- 
session. The  ownership  thus  created  admitted  of 
no  qualification.  The  visible  owner  was  to  all  in 
tents  and  purposes  the  actual  proprietor.  On  this 
simple  conception,  Equity  grafted  the  notion  of 
'uses."    An  owner  of  laud  could  transfer  it  to  au 


XII 


INTRODUCTION. 


indiflereiit  person  by  a  visible  symbol,  and  charge 
the  transferree  to  liold  it  for  the  use  of  another. 
The  "  conscience  "  of  the  transferree  was  said  to  be 
affected  by  this  transaction,  and  he  was  equitably 
bound  to  perform  the  trust  imposed  upon  him. 
This  obligation  could  only  be  enforced  in  a  Court 
of  Chancery,  the  presiding  judge  being  an  ecclesias- 
tic. That  Court  was  supposed  to  proceed  upon 
those  principles  which  affect  the  moral  sense.  In 
all  the  old  law  Abridgments,  Chancery  law  is 
found  under  the  title  "  Conscience."  Chief  Justice 
Fortescue,  in  the  reign  of  Henry  VI.,  a.  d.  1453, 
derives  Equity  from  the  two  words  con-scio,  which  he 
explains  to  mean  the  case  where  men  have  the  same 
knowledge  as  God  possesses,  that  is,  they  know  His 
will  as  nearly  as  possible  by  reason.  He.  further 
remarks  that  a  man  may  have  a  claim  at  common 
law,  when  by  "  conscience  "  he  would  be  condemned. 
In  another  case,  occurring  in  the  year  1474,  the 
Chancellor  said  that  a  case  before  him  must  be  de- 
termined according  to  the  law  of  nature  in  the 
Chancery.* 

When  this  principle  came  to  be  fully  estab- 
lished, rights  were  recognized  in  one  court,  •which 
were  denied  in  the  other.  Thus  in  the  case  under 
contemplation,  the  transferree  of  the  land  was  said 
to  have  the  lenal  title,  and  the  owner  of  the  "  use  " 

*  Year  Book,  13  Ed.  IV.  fol.  9f  case  5.  This  is  an  earlier  recogni- 
tion of  t  ho  duty  of  modern  Courts  of  Equity  to  follow  the  Iioinau 
*  law  of  nature  "  than  any  noticed  by  Mr.  Maine. 


INTRODUCTION. 


xi  11 


an  equitable  interest,  and  the  Court  of  Chancery 
substantially  protected  liim  in  the  enjoyment  of  the 
rights  of  ownership.  He  could,  in  general,  insist 
on  having  the  legal  title  made  over  to  him  by  a 
formal  conveyance.  This  doctrine  was  soon  seized 
upon  to  create  other  modifications  of  property.  For 
example,  no  owner  of  land  could,  by  the  common 
law,  dispose  of  it  by  will,  except  in  certain  local- 
ities where  a  custom  permitting  a  will  prevailed. 
An  evasion  of  this  rule  of  la  w  could  be  made  through 
uses.  If  a  man  wished  to  make  a  will,  he  trans- 
ferred his  land  to  another  to  hold  to  his  use.  This 
person  was  in  conscience  bound  to  hold  it  for  the 
grantor,  who  was  said  to  have  a  "  use."  He  could 
make  a  will  of  the  use,  and  the  devisee  could  then, 
by  a  resort  to  Chancery,  compel  the  grantee  to  give 
him  a  deed  of  the  land.  If  the  grantor  died  with- 
out making  a  will,  the  "  use"  descended  to  his  heir, 
who  could  in  like  manner  exact  a  deed  from  the 
grantee.  For  many  years,  men  were  in  the  constant 
practice  of  evading  in  Equity  the  legal  rule  that  an 
owner  of  land  could  not  make  a  will.  Ever)-  intel- 
ligent person  knew  of  this  double  rule,  but  no  steps 
Were  taken  to  remove  the  anomaly.  Even  Parlia- 
ment passed  special  statutes  facilitating  the  exercise 
by  the  king  of  the  power  to  make  a  will  in  accord- 
ance with  this  device. 

The  time  came  when  the  fact  was  recognized  that 
the  difference  between  law  and  equity  upon  this 
and  other  points  connected  with  uses  was  a  mere 


XIV 


INTRODUCTION. 


form.  The  third  agency  indicated  by  Mr.  Maine 
then  interferes.  Legislation  corrects  the  anomaly 
He  who  has  the  use,  is  declared  to  be  the  owner  of 
the  land,  and  a  statute  is  passed  conferring  the 
power  to  make  wills. 

When  the  statute  of  uses  is  brought  before  the 
courts,  a  narrow  construction  is  adopted.  It  ia 
decided  that  certain  uses  shall  not  be  turned  iuto 
legal  ownership.  Chancery  seizes  upon  these  re- 
jected uses,  and  upholds  them  as  trusts,  fastening 
itself  on  the  "  conscience  "  of  the  legal  owner.  These 
trusts  had  become  in  certain  cases  purely  formal, 
when  after  three  centuries,  the  legislature  of  New 
York  carries  out  the  principle  of  the  original  statute, 
and  declares  that  by  no  device  shall  there  be  a  mere 
formal  trust  in  land. 

This  topic  might  be  pursued  to  an  indefinite 
length,  and  many  similar  instances  summoned  from 
English  legal  history.  Mr.  Maine  deserves  the  ere 
dit  of  being  the  first  to  give  body  and  form  to  the 
principle,  which  every  student  of  law  perceives  as 
soon  as  it  is  stated  to  him. 

The  second  part  of  his  book  is  equally  striking. 
It  contains  an  account  of  the  origin  and  progress 
of  leading  rules  in  legal  science.  In  its  method,  it 
is  in  direct  antagonism  to  the  loose  declamatory 
style  in  which  many  discburse  of  legal  principles. 
The  work  throughout  has  a  high  and  cheerful  tone. 
It  maintains  the  steady  progress  of  mankind  in 
jurisprudence  from  an  age  of  formalities  and  cere 


INTRODUCTION. 


xv 


monies  to  an  era  of  simplicity  and  symmetrica] 
development.  It  asserts  the  continuity  of  the  lminan 
race,  and  we  are  permitted  to  feel  nearly  every 
link  of  the  chain  which  binds  the  men  of  our  day 
to  the  nations  of  the  remotest  antiquity.  ^ 

The  chapters  on  conveyances,  wills,  and  con- 
tracts have  an  especial  value,  and  will  serve  to 
dispel  many  erroneous  views  concerning  transac- 
tions which  make  up  a  large  part  of  the  business 
of  human  life. 

In  the  hope  of  facilitating  the  use  of  this  book 
in  law  schools  and  colleges,  the  writer  has  prepared 
an  abstract  of  its  contents.  He  only  vouches  for 
its  general  accuracy.  The  special  qualifications  and 
limitations  of  the  principal  propositions  must,  of 
course,  be  sought  in  the  body  of  the  work.  It  ia 
confidently  believed  that  this  treatise  is  worthy  of 
the  careful  study  of  all  young  men  who  desire  to 
make  the  law  an  honorable  pursuit,  and  not  a  mere 
trade  or  calling.  It  may  also  be  warmly  commended 
to  the  general  scholar,  who  cannot  fail  to  derive 
instruction  and  stimulation  from  its  weighty  and 
earnest  words. 


L 

The  earliest  notion  of  law  is  not  an  enunciation 
of  a  principle,  but  a  judgment  in  a  particular  case. 
When  pronounced,  in  the  early  ages,  by  a  king,  it 
wa3  assumed  to  be  the  result  of  a  direct  divine 

B 


XVI 


INTRODUCTION. 


inspiration.  Afterward  came  the  notion  of  a  cus- 
torn  which  a  judgment  affirms,  or  punishes  its 
breach.  In  the  outset,  however,  the  only  author 
itative  statement  of  right  and  wrong  is  a  judicial 
sentence  rendered  after  the  facts  have  occurred.  It 
does  not  presuppose  a  law  to  have  been  violated, 
but  is  breathed  for  the  first  time  by  a  higher  power 
into  the  judge's  mind  at  the  moment  of  adjudication. 

When  aristocracies  succeeded  to  the  power  of 
the  kings,  they  became  depositaries  and  administra- 
tors of  law,  without  claiming  direct  inspiration  for 
each  sentence.  They  monopolize  the  knowledge  of 
law.  Customary  law  now  exists,  which  is  assumed 
to  be  precisely  known  to  the  privileged  order  or 
caste.  This  is  the  era  of  true  unwritten  law.  Be- 
fore the  invention  of  writing,  this  was  the  only 
expedient  hy  which  there  could  be  an  approximation 
•to  an  accurate  preservation  of  the  customs  of  a  race 
or  tribe. 

Next  we  arrive  at  the  era  of  the  Codes,  of  which 
the  Twelve  Tables  are  best  known.  Everywhere 
law  graven  on  tablets  takes  the  place  of  usages 
announced  by  the  oligarchy.  This  movement  was 
not  due  to  any  notion  of  the  superiority  of  codifi- 
cation, but  to  the  fact  that  writing  was  a  better 
depositary  of  law  than  the  memory  of  individuals. 
The  importance  of  the  codes  can  not  be  denied. 
They  afforded  protection  against  the  frauds  of  the 
oligarchy  and  the  debasement  of  the  national  insti- 
tutions.   A  great  mark  of  distinction  between  the 


INTRODUCTION. 


xvn 


Romans  and  the  Hindoos  consists  in  the  fact  that 
the  Romans  had  a  code  early  in  their  history,  while 
customs  were  wholesome,  and  before  that  usage 
which  was  reasonable  had  generated  that  which  was 
unreasonable.  u 

As  soon  as  a  code  is  produced,  there  is  no  lon- 
ger a  spontaneous  development  of  law.  Hereafter, 
investigations  must  be  confined  to  progressive  races 
of  men.  "With  these,  social  necessities  and  social 
opinion  are  always  more  or  less  in  advance  of  law, 
Law  is  stable;  society  is  progressive.  How  shall 
this  gulf  be  narrowed  which  has  a  perpetual  tend- 
ency to  re-open  ? 

There  are  three  agencies  with  which  law  is 
brought  into  harmony  with  society — Legal  Fiction, 
Equity,  and  Legislation.  Their  historic  order  follows 
this  arrangement.  (1)  By  Legal  Fiction  is  meant 
an  assumption  which  conceals  or  affects  to  conceal 
the  fact  that  a  rule  of  law  has  undergone  alteration, 
the  letter  remaining  unchanged,  but  its  operation 
being  modified.  This  is  a  rude  device  absolutely 
necessary  in  the  early  stages  of  society  ;  but  fictions 
have  had  their  day.  (2)  The  next  instrumentality 
by  which  law  is  adapted  to  social  wants  is  called 
TSquity.  This  is  a  body  of  rules  existing  by  the 
sid  ■  of  the  original  law,  founded  on  distinct  princi- 
ples, and  claiming  incidentally  to  supersede  the  civil 
law  by  virtue  of  a  superior  sanctity  in  its  principles. 
This  doctrine  of  Equity  is  found  in  the  Roman  law, 
and  in  the  English  law  under  the  direction  of  the 


XVIII 


INTRODUCTION. 


Court  of  Chancery.  It  differs  on  the  one  hand  frcm 
fiction,  for  its  interference  with  the  law  is  open  and 
avowed,  and  on  the  other  from  legislation,  for  it 
does  not  lay  claim  to  authority  on  the  prerogative 
of  any  external  j>erson  or  body,  but  rests  ouly  on 
the  special  nature  of  its  principles.  (3)  Next  in 
order  is  Legislation.  This  derives  its  authority  from 
an  external  body  or  person.  It  is  not  necessarily 
governed  by  any  principle.  The  external  body 
may  legislate  in  the  wantonness  of  caprice,  or  its 
action  may  be  dictated  by  some  principles  of  equity. 
In  either  case,  its  binding  power  depends  solely 
upon  its  external  authority. 

In  the  youth  and  infancy  of  a  nation  it  is  a  rare 
tiling  for  legislation  to  be  called  into  action  for  the 
general  reform  of  private  law.  Its  development 
must  depend  on  the  first  two  agencies  which  have 
been  described. 

Having  thus  stated  the  difference  between  these 
terms,  the  method  in  which  they  act  upon  positive 
law  may  now  be  noticed.  This  will  be  best  disclosed 
by  illustrations. 

(1)  Fiction.  A  striking  instance  of  fiction  is 
found  in  the  case  law  of  England.  When  a  case  is 
about  to  be  decided  under  the  common  law,  the 
assumption  on  the  argument  is  that  its  decision  will 
call  only  for  the  application  of  principles  and  distinc- 
tions which  have  long  since  been  allowed.  It  is 
assumed  that  there  is  a  rule  of  law  which  will  govern 
the  question  now  litigated,  and  which  may  be  (lis- 


INTRODUCTION. 


XTX 


covered  by  the  exercise  of  sufficient  skill  and  know, 
ledge.  As  soon  as  the  case  has  been  decided,  a  new 
train  of  thought  is  adopted,  and  it  is  admitted  that 
the  decision  has  modified  the  law.  Though  the  law 
has  been  changed,  men  fail  to  notice  that  the  bid 
rule  has  been  repealed.  Even  lawyers  convey  the 
paradoxical  proposition  that,  except  by  equity  and 
statute  law,  nothing  has  been  added  to  the  basis 
of  common  law  since  it  was  first  constituted.  They 
maintain  that  its  rules,  with  some  assistance  from  the 
Court  of  Chancery  and  Parliament,  are  co-extensive 
with  the  interests  of  modern  society. 

A  similar  illustration  may  be  derived  from  the 
Roman  law.  "  The  Responsa  prudentum,"  or  answers 
of  the  learned  in  the  law,  consisted  of  explanations 
of  authoritative  written  documents.  It  was  asmmed 
that  the  written  law  was  binding,  but  the  responses 
practically  modified  and  even  overruled  it.  A  great, 
variety  of  rules  was  thus  supposed  to  be  educed 
from  the  Twelve  Tables,  which  were  not  in  fact  to 
be  found  there.  They  could  be  announced  by  any 
jurisconsult  whose  opinions  might,  if  he  were  distin- 
guished, have  a  binding  force  nearly  equal  to  enact- 
ments of  the  legislature.  The  responses  were  not 
published  by  their  author,  but  were  recorded  and 
edited  by  his  pupils,  and  to  this  fact  the  world  is 
indebted  for  the  educational  treatises,  called  Institutes 
or  Commentaries,  which  are  among  the  most  remark- 
able features  of  the  Roman  system.  The  distinction 
between  the  "responses*'  and  the  "case  law"  of 


XX 


INTRODUCTION. 


England  should  he  noticed.  The  one  consists  of 
expositions  by  the  har,  and  the  other  by  the  hench. 
It  might  have  been  expected  that  such  a  system 
would  have  'popularized  the  law.  This  was  not  the 
fact.  Weight  "was  only  attached  to  the  responses 
Df  conspicuous  men  who  were  masters  of  the  prin- 
ciples as  well  as  details  of  jurisprudence.  The  great 
development  of  legal  principles  at  Rome  was  due 
to  this  method  of  producing  law.  Under  the  Eng- 
lish system  no  judge  can  enunciate  a  principle  until 
an  actual  controversy  arises  to  which  the  rule  can 
be  applied  ;  under  the  Roman  theory,  there  was  no 
limit  to  the  question  to  which  a  response  might,  be 
given,  except  the  skill  and  ingenuity  of  the  ques- 
tioner. Every  possible  phase  of  a  legal  principle 
could  thus  be  examined,  and  the  result  would  show 
the  symmetrical  product  of  a  single  master  mind. 
This  method  of  developing  law  nearly  ceased  at  the 
fall  of  the  republic  The  Responses  were  systematized 
and  reduced  into  compendia.  The  right  to  make 
responses  was  limited  by  Augustus  to  a  few  juris- 
consults. The  edict  of  the  Proctor  became  a  source 
of  law,  and  a  great  school  of  jurists,  containing  such 
men  as  Ulpian,  Paulus,  Gaius,  and  Papinian,  arose, 
who  were  authors  of  treatises  rather  than  of  re- 
Bponses. 

(2)  Eqwtiy,  The  theories  of  Equity  obtained 
an  early  currency,  both  in  Rome  and  in  England. 


INTRODUCTION. 


(A)  Equity  Law  of  England.  A  discussion  of 
the  jurisprudence  of  the  English  Court  of  Chancery 
would  require  a  separate  treatise.  It  is  complex  in 
its  texture,  and  derives  its  materials  from  heteroge- 
neous sources,  such  as  the  canon  law,  Roman  Lb17 
and  the  mixed  systems  of  jurisprudence  and  morals 
constructed  by  the  publicists  of  the  low  countries. 
It  was  greatly  controlled  in  its  growth  by  the  neces- 
sity of  conforming  itself  to  the  analogies  of  the 
common  law,  although  it  claimed  in  many  respects 
to  override  it  on  the  strength  of  an  intrinsic  ethical 
superiority. 

(B)  Equity  Law  of  Rome. — (a)  Lis  General 
Principles.  The  Equity  of  Rome  was  a  much  sim- 
pler structure  and  its  development  can  be  more 
easily  traced.  The  Roman  legal  system  consisted 
of  two  ingredients :  one,  the  law  which  the  people 
enacts  for  itself,  called  the  civil  law,  and  the  other 
that  which  natural  reason  appoints  for  all  men,  and 
which  is  called  the  Law  of  Nations,  because  all 
men  use  it.  This  latter  element  is  elsewhere  called 
the  Law  of  Nature,  and  is  said  to  be  the  offspring 
of  natural  equity  as  well  as  of  natural  reason. 

It  was  a  peculiar  feature  in  Roman  history  that 
the  fortunes  of  the  republic  were  greatly  affected 
by  the  presence  of  foreigners.  This  fact  is  partly 
attributable  to  a  disposition  to  seek  refuge  in  a 
strong  government  from  the  instability  of  unsettled 
society,  and  partly  t<  the  active  commercial  relations 


xxn 


INTRODUCTION. 


which  were  had  w  ith  Carthage  and  the  interior  of 
Italy.  The  alien,  however,  had  no  share  in  the  purely 
Roman  institutions.  He  could  not  make  a  strictly 
Roman  conveyance  nor  bring  a  formal  legal  action. 
Controversies  involving  his  interests  could  not  be 
decided  by  pure  Roman  civil  law.  The  Roman 
lawyers  in  this  difficulty  resorted  to  the  expedient 
of  selecting  the  rules  of  law  common  to  Rome  and 
to  the  different  Italian  communities  in  which  the 
foreigners  were  born.  This  common  element  wras 
called  the  Jus  Gentium,  or  the  law  common  to  all 
nations.  The  result  was  that  whenever  a  particular 
usage  was  seeu  to  be  practised  by  a  large  number 
of  separate  races,  it  was  set  down  as  a  part  of  the 
law  common  to  all  nations. 

It  must  not  be  supposed  that  the  early  Roman 
lawyer  had  any  special  respect  for  this  law.  It  was 
forced  on  his  attention  by  a  political  necessity.  He 
was  attached  to  the  civil  law  with  its  ceremonies  and 
formalities,  and  cared  no  more  for  the  "  law  of  na- 
tions "  than  for  the  foreigners  for  whose  benefit  it 
was  intended.  The  " law  of  nations"  must  not  be 
confounded  with  international  law,  or  the  law  be- 
tween nations. 

At  a  later  period,  the  law  of  nations  was  consid 
ered  as  the  model  to  which  all  law  ought  as  nearly 
■  i s  possible  tu  conform.  This  result  was  brought 
about  by  the  Greek  theory  of  a  law  of  nature. 
Under  this  theory,  nature  denoted  the  physical  world 


INTRODUCTION. 


xxin 


regarded  as  the  result  of  some  original  element  of 
law.  The  later  sects  added  the  moral  to  the  physi 
cal  world  in  the  conception  of  nature.  It  was  not 
merely  the  phenomena  of  human  society,  but  pheno- 
mena resolvable  into  some  general  and  simple  hhvs. 
Greek  Philosophers  imagined  that  but  for  some 
accident,  the  human  race  would  have  conformed 
itself  to  simple  rales  of  conduct,  and  have  lived 
according  to  nature.  This  was  the  end  for  winch  man 
was  created  ;  it  was  the  substance  of  the  stoic  phi- 
losophy. On  the  subjugation  of  Greece,  this  philoso- 
phy made  the  most  rapid  progress  in  Roman  society. 
The  Roman  lawyers  were  the  leading  disciples  of  the 
new  school,  who  affected  the  stoic  principles  of  life 
according  to  nature.  The  alliance  of  the  lawyers 
with  the  philosophers  lasted  for  centuries.  The 
influence  of  the  stoic  philosophy  is  not  to  be  meas- 
ured by  the  specific  legal  rules  which  it  contributed 
to  jurisprudence,  but  by  the  single  assumption  that 
the  oW  jus  gentium  was  the  lost  code  of  nature,  and 
that  the  equity  jurisprudence  of  the  praetor  was  the 
restoration  of  a  type  from  which  law  had  departed. 
From  this  moment,  the  law  improved  with  great 
rapidity.  The  simplicity  and  symmetry  associate 
with  the  conception  of  nature  were  regarded  as  the 
characteristics  of  a  good  legal  system.  Ceremonies 
and  useless  formalities  disappeared,  and  finally  the 
law  assumed  its  present  shape  under  the  superin- 
tendence of  Justinian. 


XXIV 


INTRODUCTION. 


The  p(  int  of  contact  between  the  law  of  nations 
and  the  law  of  nature  was  equity.  Some  have 
derived  this  term  from  a  Greek  word  which  indicates 
the  principle  of  equal  distribution.  We  prefer  that 
origin  which  gives  it  the  sense  of  levelling.  The 
civil  law  of  Rome  recognized  many  arbitrary  dis- 
tinctions between  classes  of  men  and  property.  The 
neglect  of  these  distinctions  was  that  feature  of  the 
law  of  nature  which  is  depicted  in  equity.  It  was 
at  first  applied  to  foreign  litigants  without  ethical 
meaning,  and  to  the  early  Romans  was  without  doubt 
extremely  distasteful.  When  the  "  law  of  nature" 
was  fully  recognized  a  different  view  prevailed. 
Nature  implied  symmetrical  order,  and  equity  came 
to  have  associations  with  the  idea  of  equal  distribu- 
tion. This  may  be  inferred  from  the  language  of 
Cicero,  and  it  is  the  first  stage  of  a  transmutation 
of  the  conception  of  equitv  which  has  been  carried 
on  by  nearly  every  ethical  system  of  later  times. 

b.  The  formal  instrumentality  by  which  the  law 
of  nations  and  of  nature  was  incorporated  into  the 
lioman  law. 

After  the  expulsion  of  the  Tarquins,  the  supreme 
judicial  office  devolved  on  the  praetor.  He  had  an 
undefined  supremacy  over  law  and  legislation  which 
had  always  attached  to  ancient  sovereigns.  This 
indefinite  portion  of  his  functions  was  the  more  im 
portant  on  account  of  the  multitude  of  persons  who 


INTRODUCTION. 


were  nc»t  indigenous  Romans,  and  who  would  have 
been  without  remedies,  had  not  the  praetor  under- 
taken to  decide  upon  their  rights.  It  was  a  rule  at 
Rome,  as  a  matter  of  precaution,  that  ever}"  magis- 
trate having  indefinite  powers  should  publish,  on 
commencing  his  year  of  office,  an  edict  or  proclama- 
tion in  which  he  declared  the  manner  in  which 
his  department  would  be  administered.  The  praetor 
was  governed  by  this  rule.  It  soon  became  the 
practice  for  each  praetor  to  publish  his  predecessor's 
edict,  with  such  modifications  as  he  deemed  neces- 
sary. The  proclamation  obtained  the  name  of  the 
edictum  peqxtuum,  or  the  continuous  or  unhroTcen 
edict.  The  practice  of  increasing  the  edict,  ceased 
in  the  reign  of  the  Emperor  Hadrian,  under  the 
magistracy  of  Salvias  Julianus,  and  the  perpetual 
edict  was  then  called  the  edict  of  Julianus. 

It  might  seem  at  first  thought  that  there  was 
no  limit  by  which  this  extensive  power  was  con- 
fined, and  that  the  action  of  the  praetor  might  be- 
come dangerous  to  social  order.  Practically,  his 
power  was  restrained  by  the  ideas  and  views  of  the 
legal  profession  to  which  he  belonged.  At  first  his 
intervention  was  dictated  by  simple  concern  for  the 
safely  of  the  State.  Afterward,  he  used  the  "re 
spouses"  as  a  means  of  applying  fundamental  prin 
ciples.  Still  subsequently,  he  acted  under  the  intlii 
ence  of  Greek  philosophical  theories  which  marked 
out  the  line  of  his  progress. 

After  the  edict  of  Julianus,  the  equity  jurisprii 


XXVI 


INTRODUCTION. 


dence  of  Rome  was  developed  by  the  labors  of  a 
succession  of  great  lawyers  who  flourished  between 
the  reign  of  Hadrian  and  that  of  Alexander  Severus. 
Their  treatises  chiefly  took  the  form  of  commenta- 
ries  on  the  edict.  The  same  tribunal  administered 
law  and  equity.  As  soon  as  an  equitable  rule  wag 
evolved,  the  praetor  applied  it  by  the  side  of  the  old 
rule,  which  was  substantially  repealed  without  any 
act  of  the  legislature.  Although  there  was  no  com- 
plete fusion  of  law  and  equity,  yet  the  latter  sup- 
plied the  jurist  with  all  his  materials  for  generaliza- 
tion, with  all  his  methods  of  interpretation,  with 
his  elucidations  of  first  principles,  and  with  the 
great  mass  of  limiting  rules  which  seriously  control 
the  application  of  every  legislative  act. 

In  the  reign  of  Alexander  Severus,  the  power 
of  growth  in  Roman  equity  was  exhausted.  Then 
follow  imperial  constitutions,  and  finally  the  attempts 
to  codify  the  unwieldy  mass  of  Roman  jurispru- 
dence, the  most  celebrated  of  which  is  the  Corpus 
Juris  of  Justinian. 

(<?).  Features  common  to  English  and  Roman 
equity.  These  systems  of  jurisprudence  had  two 
features  in  common.  First,  each  of  them  tended 
to  exactly  the  same  state  in  which  the  old  common 
law  was  when  equity  first  interfered  with  it.  When 
the  moral  principles  adopted  by  courts  of  equity 
have  been  carried  out  to  their  legitimate  conse- 
ipiences,  the  system  becomes  rigid  and  unexpansive, 


INTRODUCTION. 


XXVI] 


and  is  liable  to  fall  behind  moral  rules  as  a  strict 
legal  code.  This  happened  at  Rome,  in  the  reign 
of  Alexander  Severus.  The  same  period  arrived  in 
England  during  the  chancellorship  of  Lord  Eldon, 
whose  task  it  was  to  explain  and  harmonize  the 
jurisprudence  of  his  court.  Its  morality  is  not  the 
morality  of  our  own  day,  but  of  past  centuries. 
Further  improvement  is  not  to  be  had  by  this  agen- 
cy, but  l>y  legislation.  Second  :  in  each  of  these  sys- 
tems there  was  a  false  assumption  upon  which  the 
claim  of  the  superiority  of  the  equitable  rule  was 
founded.  The  moral  progress  made  was  explained 
as  the  recovery  of  a  lost  perfection,  and  as  a  return 
to  a  state  from  which  the  race  had  lapsed.  The 
Roman  lawyers  accounted  for  the  improvement  in 
their  jurisprudence  by  the  Greek  doctrine  of  a 
natural  society.  In  England,  the  claim  of  equity 
to  override  the  common  law,  was  explained  by  a 
supposed  paternal  authority  vested  in  the  king, 
enabling  him  to  superintend  the  administration  of 
justice.  Another  mode  of  expressing  the  same  idea 
was  that  equity  flowed  from  the  king's  conscience. 
The  true  reason  was  overlooked,  that  there  was  an 
improvement  in  the  moral  standard  of  the  com- 
munity. 

(d).  Modern  Iliston/  of  the  7m  w  of  Xadirc. 
The  Roman  theory  of  the  law  of  nature,  though 
deficient  in  philosophical  precision,  was  very  impor- 
tant to  mankind     There  are  two  dangers  to  which 


XXVIII 


INTRODUCTION. 


law  and  society  are  liable  in  their  infancy.  One  of 
them  is  that  law  may  be  too  rapidly  developed 
This  occurred  with  the  codes  of  the  Greek  com- 
munities. If  the  Romans  were  in  danger  of  it,  they 
had  adequate  protection  in  their  theory  of  natural 
law.  It  kept  before  the  mental  vision  a  type  of 
perfect  law,  to  which  there  might  be  an  indefinite 
approximation.  This  system  was  not  entirely  the 
product  of  imagination,  but  it  was  supposed  to 
underlie  existing  law.  Unlike  the  modern  notion 
of  a  law  of  nature,  its  functions  were  remedial,  not 
revolutionary  or  anarchical. 

The  other  liability  to  which  the  infancy  of  so- 
ciety is  exposed,  is  the  identification  of  law  with 
religion.  The  perfection  of  law  has  been  considered 
as  consisting  in  an  adherence  to  the  plan  marked 
out  bv  the  original  legislator.  The  great  advantage 

J  CO  o  o 

which  the  Romans  possessed,  was  that  thro.  gh  their 
theory  of  natural  law  they  had  a  distinct  object  to 
aim  at,  like  that  which  Bentham  gave  to  English 
lawyers,  when  he  announced  that  the  true  object  of 
jurisprudence  was  to  secure  the  general  good  of  the 
community.  It  was  not  from  motives  of  philanthropy, 
but  from  a  sense  of  simplicity  and  symmetry,  that 
the  Roman  law  yers  held  up  the  law  of  nature  as  an 
ideal  and  perfect  law. 

The  influence  of  the  Roman  theory  of  "natural 
law  11  in  modern  times  has  been  very  great.  It  is 
the  source  of  most  of  the  special  ideas  as  to  law. 
politic^,  ami  society  which  Fiance  during  the  las'. 


INTRODUCTION. 


x>::x 


hundred  years  has  diffused  over  the  Western  world 
From  various  causes,  natural  law  in  the  eighteenth 
century  had  become  the  common  law  of  France.  Its 
influence  would  probably  have  been  checked  by 
Montesquieu's  u  Spirit  of  the  Laws,"  had  not  Rous- 
seau appeared.  In  all  his  speculations,  the  central 
figure  is  man  in  a  supposed  state  of  nature.  It  is  the 
theory  of  the  Roman  lawyers  inverted.  The  subject 
of  contemplation  is  not  the  law  of  nature,  but  the 
state  of  nature.  Though  Rousseau's  philosophy  in 
its  grosser  forms  has  fallen  low  in  geueral  esteem, 
yet  in  its  disguises  it  still  possesses  popularity  and 
power.  The  doctrines  of  nature  and  her  law  have 
preserved  their  energy  by  allying  themselves  with 
political  and  social  tendencies.  They  enter  largely 
into  the  ideas  which  radiate  from  France  over  the 
civilized  world.  From  this  source  is  derived  the 
doctrine  of  the  fundamental  equality  of  human 
beings.  The  proposition  in  the  Roman  law,  that  all 
men  are  equal,  is  a  legal  rule;  in  modern  times,  it 
is  a  political  dogma.  In  the  American  Declaration  of 
Independence,  the  French  assumption  that  14 all  men 
are  born  equal,"  is  joined  with  the  English  idea 
that  "all  men  are  born  free." 

The  greatest  function  of  the  Law  of  Nature  was 
discharged  in  giving  birth  to  International  Law  and 
tlic  Liw  of  War.  The  principal  postulates  of  inter- 
national law  are:  first,  that  there  is  a  determinable 
aw  of  nature;  next,  that  Natural  Law  is  binding 
on  states.    As  a  corollary  from  the  second  proposi 


XX.K 


INTRODUCTION. 


lion,  the  several  states  must  be  absolutely  equaL 
Third,  in  reference  to  acquisition  of  property,  sove- 
reigns are  related  to  each  other  like  a  group  of 
Roman  proprietors.  This  may  be  resolved  into  the 
propositions  that  sovereignty  is  territorial,  and  that 
sovereigns  as  between  themselves  are  absolute  owners 
of  the  state's  territory.  The  doctrine  of  territorial 
sovereignty,  by  which  is  meant  the  view  which  con- 
nects sovereignty  with  the  possession  of  a  limited 
portion  of  the  earth's  surface,  is  the  product  of  feu- 
dalism. Without  this  doctrine,  Grotius'  labors  upon 
international  law  would  have  been  in  vain.  The 
existence  of  an  imperial  power  ruling  over  the  states 
of  Europe,  even  in  theory,  would  not  have  admitted 
of  the  application  of  the  principles  of  natural  law. 
It  was  essential  that  they  should  be  insulated  and 
independent  of  each  other  in  order  that  they  might 
be  equal.  Had  there  been  a  common  superior  over 
them,  the  notion  of  positive  law  would  have  been 
introduced  and  the  natural  law  excluded. 

(3)  Legislation.  The  Statute  Law  of  Rome  waa 
scanty  during  the  republic,  but  voluminous  under 
the  empire.  In  the  youth  of  a  nation,  the  interfe- 
rence of  the  legislative  body  is  commonly  directed 
to  the  removal  of  some  abuse,  or  the  decision  of 
some  quarrel  between  classes  and  dynasties.  In 
this  way  society  was  settled  after  a  great  civil  com- 
motion. The  true  period  of  statute  law  does  not 
begin  till  the  establishment  of  the  empire,  and  in 


INTRODUCTION. 


XXXI 


the  reign  of  the  second  emperor  considerable  approx 
imation  had  been  made  to  that  condition  of  the  lavs 
with  which  men  are  familiar  at  the  present  day. 

TL 

The  true  method  of  investigating  the  principles 
of  ancient  law  has  often  been  overlooked.  That 
which  has  hitherto  stood  in  the  place  of  science  has 
been  for  the  most  part  a  series  of  guesses.  The 
mistake  which  has  been  committed  is  analogous  to 
the  error  of  one  who,  in  investigating  the  laws  of 
the  material  universe,  should  commence  by  contem- 
plating the  existing  physical  world  as  a  whole, 
instead  of  beginning  with  the  particles  which  are 
its  simplest  ingredients.  Our  proper  course  is  to 
penetrate  as  far  up  as  we  can  in  the  histories  of 
primitive  societies. 

There  are  only  three  sources  of  knowledge  upon 
the  rudiments  of  the  social  state:  (a)  accounts  by 
contemporary  observers  ;  (b)  records  which  particu- 
lar races  have  preserved  concerning  their  primitive 
history ;  (c)  ancient  law.  An  instance  of  the  first 
kind  is  the  Germania  of  Tacitus.  The  amount  of 
testimony  from  the. first  two  sources  is  exceedingly 
small.  Contempt,  negligence,  pride  of  race,  and  the 
religions  sentiment  of  a  newer  age,  have  each  in  their 
turn  impaired  the  value  of  such  accounts  as  we  have. 
These  suspicions  do  not  attach  to  ANGQENT  Law 
o 


XXKIt 


INTRODUCTION. 


Much  of  this  was  presen  eel  because  it  was  old,  and 
tliose  who  retained  it  offered  no  account  of  it  except 
that  it  had  come  down  to  them  from  their  ancestors. 
Inquiries  may  therefore  be  confined  to  the  effect  of 
evidence  derived  from  comparative  jurisprudence. 

This  evidence  establishes  that  view  of  the  race 
which  is  known  as  the  Patbiaechal  Theoey.  This 
theory  is  based  on  the  Scriptural  history  of  the 
Hebrew  patriarchs.  All  known  societies  were  ori- 
ginally organized  on  this  model.  The  eldest  male 
parent  is  absolutely  supreme  in  his  household.  His 
dominion  extends  to  life  and  death,  and  is  as 
unqualified  over  his  children  as  over  his  slaves. 
The  flocks  and  herds  of  the  children  are  the  flocks 
and  herds  of  the  father.  These  he  holds  in  a  repre- 
sentative rather  than  in  a  proprietary  character. 

When  society  came  to  be  formed,  it  was  not  as 
now  a  collection  of  individuals,  but  an  aggregation 
of  families.  The  unit  of  an  ancient  society  was  the 
family;  of  a  modern  society,  the  individual.  Law 
is  scanty,  because  it  is  supplemented  by  the  despotic 
commands  of  the  heads  of  households.  It  is  cere- 
monions,  because  the  transactions  to  which  it  pays 
regard  resemble  international  concerns  much  more 
than  the  quick  play  of  intercourse  between  individ- 
uals. On  this  simple  society,  fiction  soon  began  to 
operate.  New  comers  were  incorporated  into  it  by 
the  law  of  Adoption,  which  consists  in  feigning 
themselves  to  be  of  the  same  stock  as  the  people  on 
which  they  were  engrafted.     When  this  fiction 


INTRODUCTION. 


XXXIII 


ceased  to  operate,  these  societies  became  aristocra- 
cies, and  a  new  law  came  into  play,  viz.,  Local  Con- 
tiguity. 

The  leading  developments  of  this  organization 
will  now  be  indicated. 

1.  The  life-long  Authority  of  the  Father  over  the 
Person  and  Property  of  his  Descendants.  This  an 
thority  the  Romans  called  Patria  Potestas,  or  as  it 
may  be  briefly  termed,  "  the  child  uuder  power." 
There  is  an  important  distinction  to  be  noticed 
between  the  relations  created  by  public  and  by 
private  law.  In  reference  to  the  public,  the  son 
"under  power"  was  as  free  as  his  father;  in  all  the 
relations  created  by  private  law,  he  lived  under  a 
domestic  despotism.  The  progress  of  civilization  as 
to  this  subject  is  best  shown  in  the  Roman  law. 

The  early  Roman  law  adopted  the  most  rigid 
form  of  this  doctrine.  While  in  the  later  period 
of  the  empire,  the  power  over  the  person  became 
nominal,  that  over  the  property  was  always  exer- 
cised to  the  full  extent  sanctioned  by  law.  The 
father  could  enjoy  the  whole  of  the  son's  acquisitions 
and  the  benefit  of  his  contracts.  The  first  innova- 
tion upon  this  rule  took  place  in  the  acquisitions  of 
soldiers  on  service ;  afterward,  the  earnings  of  per- 
sons in  the  civil  employments  of  the  state  were 
secured  to  them.  Even  in  the  latest  days  of  the 
empire,  the  father  was  entitled  to  a  lite  interest  in 
the  acquisitions  of  his  child. 


XXX IV 


INTRODUCTION". 


This  power  of  the  father  imposed  upon  him  a 
corresponding  duty.  He  was  liable  for  the  wrong- 
ful acts  of  his  son  while  under  power.  He  had  a 
representative  ownership  which  was  coexteusive  with 
his  liability  to  provide  for  all  the  members  of  th( 
brotherhood  out  of  a  common  fund.  This  was  a 
duty  enforced  rather  by  instinct  and  habit,  than  by 
definite  sanctions. 

The  universality  of  "power"  (patria  potestas) 
may  be  shown  by  the  examination  of  some  other 
topics  of  ancient  law.  Among  these,  the  most 
prominent  is  kinship.  The  Romans  regarded- 
kinship  as  Agnatic  or  Cognatic.  Cognates  are 
those  whom  we  term  blood  relations,  being  all  such 
persons  as  trace  their  descent  from  the  legitimate 
marriage  of  a  single  pair.  Agnates  are  those  blood 
relations  who  trace  their  connection  exclusively 
through  males.  This  distinction  will  be  made  clear 
by  the  following  table : 

Fattier, 
having  patria  potestas. 


Jane,  his  mar- 
ried  daughter. 
Agnate. 


John,  his  son. 
Agnate. 


James,  his  son, 
Agnate. 


Edward,  grand- 
son. 
Agnate. 


Mart,  grand 
daughter. 
Agnate. 


Richard,  grand- 
son. Cognate, 
Imt  not  Agnate. 


INTRODUCTION. 


XXXV 


AH  the  children  of  male  Agnates,  whether  male 
or  female,  are  "themselves  Agnates;  all  the  children 
of  female  Agnates  are  Cognates  to  their  mothers 
father  and  his  other  descendants.  Under  some 
systems  of  jurisprudence,  as  for  example  the^Tio 
man,  Agnatic  kindred  may  be  introduced  into 
the  family  by  the  fiction  of  Adoption.  This  ar 
rangement  of  relationship  appears  entirely  arbitrary. 
Its  true  principle  is  the  "  power  "  of  the  father. 
Wherever  "  power  "  (potestas)  begins,  relationship 
begins.  The  reason  why  descendants  of  a  female 
were  excluded  from  Agnatic  relationship  was,  be- 
cause after  marriage  her  children  fell  under  the 
power  of  her  husband.  The  same  person  could  not 
be  under  two  jurisdictions.* 

The  doctrine  of  Agnation  has  much  historical 

*  The  question  of  Agnatic  and  Cognatie  relationship  has  recently 
excited  interest  in  connection  with  the  acceptance  by  Maximilian. 
Archduke  of  Austria,  of  the  position  of  Emperor  of  Mexico.  A  family 
law  imposes  on  every  Archduchess  contracting  marriage,  the  phliga 
t"u>n  of  signing  for  herself,  or  her  descendants,  an  act  of  renunciation 
of  any  pretension  to  tho  eventual  succession  to  the  Austrian  throne, 
and  to  certain  other  rights.  A  family  council  resolved  to  apply  tho 
principle  of  this  law  to  Maximilian,  claiming  that  the  acceptance 
of  the  foreign  throne  was  analogous  in  its  effect  to  a  marriage  by  an 
Archduchess.  The  Archduke  objected  on  tho  ground  that  ho  was 
the  first  Agnate  to  tho  Emperor  Francis  Joseph,  and,  on  bis  death 
Without  a  male  heir,  entitled  to  tho  Austrian  throne.  Ho  urged-that 
whih'  a  princess  on  her  marriage  loses  her  quality  of  Agnate  to  such 
an  extent,  that  her  heirs  are  only  entitled  to  the  title  of  Cognates,  ho 
still  retained,  though  Emperor  of  Mexico,  his  title  of  Agnate.  The 
matter  was  compromised  by  a  renunciation  for  himself  and  his  heirs 
of  all  right  to  the  throne  of  Austria,  so  long  as  the  now  Mexican 
dynasty  shall  continue  to  reign. — Memorial  JJijilomati'jiu;  quoted  io 
New  York  Timet,  April  28  1864. 


XXXVI 


INTRODUCTION. 


importance.  It  can  be  traced  to  modern  law.  It 
explains  the  harsh  rule  of  the  common  law  of  Eng- 
land, that  brothers  of  the  half  blood  cannot  inherit 
from  each  other.  This  doctrine  in  ancient  law  was 
properly  confined  to  children  of  the  same  mother 
by  different  fathers  (uterine  brothers).  In  Eng- 
land, through  a  want  of  knowledge  of  the  origin  of 
the  rule,  it  was  extended  to  brothers  haying  the 
same  father,  but  different  mothers  (consanguineous 
brothers).  The  position  of  woman  in  the  ancient 
law  is  also  explained  by  the  patria  potestas.  The 
Agnatic  bond  was  not  released  in  her  case  by  the 
death  of  her  parent.  She  could  never  become  the 
head  of  a  family,  as  her  brother  might  be.  When 
her  father  died,  she  came  under  perpetual  guardian- 
ship to  her  nearest  male  relatives.  This  rule  of 
ancient  law  disappeared  from  the  matured  jurispru- 
dence of  the  Roman  Empire 

At  this  point,  we  observe  a  remarkable  contrast 
between  ancient  and  modern  law.  Under  the  early 
system,  woman  was  subordinated  to  her  relatives; 
under  the  modern,  to  her  husband.  There  are  in 
fact  three  periods  of  jurisprudence  to  be  noticed: 
the  early  Roman  law,  the  later  Roman  law,  and 
modern  systems.  Under  the  early  Roman  law, 
marriage  could  be  contracted  in  three  forms,  one  of 
which  was  religious,  and  the  other  two,  civil.  In 
view  of  the  law,  the  wife  became  her  husbands 
daughter,  and  he  exercised  over  her  the  patria 


INTRODUCTION. 


XXXYIl 


potestas.  He  could  appoint  guardians  over  her 
whose  authority  continued  after  his  death.  In  the 
later  Roman  law,  a  form  of  marriage  was  recognized, 
which  left  the  wife  theoretically  under  the  care  of 
guardians  whoui  her  parents  had  appointed,  but 
practically,  when  that  guardianship  became  obsolete, 
under  no  control  whatever.  In  modern  law,  there 
is  a  twofold  element.  The  later  Roman  jurispru 
clence  has  been  adopted  so  for  as  to  emancipate 
unmarried  women  from  the  control  of  their  male 
relatives;  while  married  women,  through  the  influ- 
ence of  religious  sentiment  and  early  notions  preva- 
lent among  the  dominant  races  from  which  modern 
nations  have  sprung,  are  governed  by  the  rules  of 
an  imperfect  civilization.  Those  systems  of  law  are 
the  most  severe  upon  married  women,  which  bor- 
rowed their  rules  from  the  canon  law,  or  which 
came  latest  in  contact  with  European  civilization, 
as  for  instance,  the  Scandinavian. 

A  clear  understanding  of  the  patria  potestas  may 
be  obtained  from  the  position  of  married  women  in 
the  English  law.  The  details  upon  this  topic  will  be 
found  in  a  note.* 

*  A  summary  of  the  common  law  concerning  the  disabilities  of 
married  women,  and  the  duties  of  their  husbands. 

I.  Tun  Husband's  Right  oyer  the  Wife's  Fkopehty,  WHICB 
might  consist  of  Real  Estate,  Leases,  Rights  of  Action,  or 
pEItftONAI.  Pbopkbtt. 

a.  As  to  her  real  estate,  he  became  life  tenant  for  tho  joint  lives 
of  himself  and  wife.  lie  was  entitled  to  the  profits  of  the  land,  and 
they  could  be  seized  by  his  creditors.  If  any  children  of  the  marriage 
were  born  alive  duiiug  the  wile's  life,  he  had  an  estate  for  his  uwt 


XXXVIII 


INTRODUCTION. 


The  doctrine  of  patria  potestas  is  still  furthei 
illustrated  by  the  law  of  guardiaushiu  concerning 

life,  though  he  outlived  his  wife.  lie  was  then  called  tenant  by  the 
courtesy  of  England. 

l>.  Her  leases  belonged  to  him  absolutely  in  case  he  survived  his 
■w  ife.  If  she  survived,  they  belonged  to  her.  Any  disposition  of  them 
by  him  during  marriage,  M  ould  defeat  her  right  of  survivorship. 

c.  Her  rights  of  action  became  his  absolutely,  if  he  reduced  them 
to  possession  while  the  wife  was  living.  By  this  was  meant  a  receipt 
of  their  amount,  either  by  payment  or  collection  through  a  lawsuit, 
or  by  sale  to  a  purchaser  for  valuable  consideration.  They  could 
even  be  taken  by  his  creditors  for  the  payment  of  debts,  although  in 
that  case,  if  not  reduced  to  possession,  they  would  revert  to  the  wife, 
if  she  survived  her  husband.  If  the  wife  died  before  the  claims  were 
collected,  the  husband  received  them  as  administrator,  in  which  case, 
after  payment  of  her  debts,  the  surplus  belonged  to  him  absolutely. 
If  the  wife  surv  ived,  the  uncollected  claims  belonged  to  her. 

d.  Her  personal  property  of  a  tangible  nature  vested  in  the  hus- 
band absolutely  at  the  moment  of  marriage. 

II.  The  Wife's  Capacity  to  Contract. 

The  wife  had  no  power  to  make  a  contract.  Her  legal  personality 
was  merged  in  that  of  her  husband.  She  could  not  deal  with  her 
husband,  for  husband  and  wife  were  in  law  one  person.  If  she  dealt 
with  third  parties,  the  transaction  could  only  be  supported  on  the 
ground  that  she  was  her  husband's  agent.  Her  earnings  belonged 
to  him,  and  he  could  collect  them  by  action.  In  one  or  two  cases,  the 
wife  might  act  as  a  single  woman.  These  were  where  her  husband 
was  an  alien,  always  living  abroad,  or  he  had  been  banished,  or 
had  abjured  the  realm. 

III.  Othee  Disabilities. 

A  wife  could  not  convey  her  land  except  by  the  fictitious  judicial 
proceedings  called  tine  and  recovery.  She  could  not  make  a  will  of  her 
land,  for  she  was  excepted  from  the  Statute  of  "Wills.  Nor  could  she 
make  a  testament  of  personal  property,  except  by  the  permission  of 
OCT  husband.  She  could  not  be  a  witness  against  or  for  her  husband, 
either  in  a  civil  or  criminal  case.  Her  domicile  followed  that  of  the 
husband.  The  husband,  being  entitled  to  her  services,  could  bring 
actions  against  one  who  harbored  the  wife,  or  who  wrongfully  inflicted 
nn  injury  upon  her  person.  There  were  in  some  instances  two 
actions:  one  by  tlio  husband  and  wife  for  the  personal  injury  dono 
to  the  wife,  and  one  by  the  husband  alone  for  the  injury  occasioned 


INTRODUCTION. 


XXXIX 


male  orphans.  A  person  whose  wardship  had 
terminated  by  the  death  of  his  father  or  grandfather 
was  placed  at  his  fifteenth  year  in  the  full  enjoyment 
of  personal  and  proprietary  independence.  This 
rule  does  not  depend  upon  any  consideration^-  of 
public  convenience,  but  upon  the  ground  that  the 
child  was  supposed  to  be  capable  of  becoming  a 
parent  himself.  Guardianship  ended  with  puberty. 
This  was  soon  found  to  be  an  inconvenient  rule, 
and  a  statute  was  passed  creating  a  new  kind  of 

by  the  loss  of  service.  The  entire  pecuniary  results  of  these  actions 
belonged  to  him. 

IV.  Duties  of  tde  Husband. 

a.  He  was  under  a  duty  to  maintain  his  wife  in  accordance  with 
her  rank  and  station.  She  became  in  such  a  case,  presumptively,  the 
husband's  agent ;  and  under  proper  circumstances,  she  could  incur  bills 
with  tradesmen,  which  could  be  collected  from  the  husband. 

b.  He  was  bound  to  pay  her  debts  contracted  before  marriage. 
This  duty  resulted  from  the  fact  that  her  legal  personality  waa 
merged  in  his.  It  followed,  that  he  must  be  sued  with  her,  while 
both  lived,  ne  would  then  be  compelled  to  pay  her  debts,  though 
he  had  received  nothing  from  her.  If  she  died  before  an  action  were 
brought,  he  could  only  be  sued  as  administrator,  and  be  liable  to  the 
extent  of  the  assets  which  he  received  in  that  character  from  her 
estate. 

c.  He  was  liable  for  the  wife's  wrongs  committed  after  marriage. 
If  she  was  guilty  of  slander  or  libel,  the  damages  could  lie  collected 
from  him  by  action.  He  might  he  sent  to  jail  if  the  judgment  waa 
not  paid. 

d.  He  was  presumptively  responsible  for  her  felonious  acts,  and 
could  be  indicted  for  crimes  of  that  grade  committed  by  the  wife  in 
hU  presence.  He  could,  however,  introduce  evidence  to  rebut  the 
presunipion. 

These  principles  were  affected  by  the  rules  adopted  in  Courts  of 
Equity,  which  are  not  within  the  view  of  this  note.  They  have 
been  largely  modified  in  the  several  Stat  s  of  this  country  by  legisla- 
tion. They  are  the  law  of  most  of  the  United  States,  except  so  far  ac 
they  have  been  changed  by  statute. 


INTRODUCTION. 


guardian  (Curator)  to  protect  the  infant  against 
intellectual  incapacity. 

Finally,  the  slave  was  also  included  in  the  family. 
This  was  well  for  hira,  as  he  was  not  degraded  to  the 
footing  of  inanimate  property.  He  had  in  the  last 
resort  a  capacity  for  inheritance.  Those  states  which 
have  adopted  the  rules  of  the  Roman  law  have  left 
the  slave  not  so  intolerably  wretched  as  those  which 
have  adopted  a  different  theory. 

The  movement  of  the  progressive  societies  has 
been,  in  one  respect,  uniform.  There  has  been  a 
gradual  dissolution  of  family  dependency,  and  the 
growth  of  individual  obligation  has  taken  its  place. 
The  tie  between  man  aud  man  which  replaces  those 
rights  and  duties  which  have  their  origin  in  the 
family  is  contract.  It  was  the  tendency  of  former 
law  to  fix  the  condition  or  "  status  "  of  persons  by 
positive  rules;  in  modern  times,  the  condition  of 
persons  is  commonly  the  immediate  or  remote  result 
of  agreement.  The  movement  has  been  from  status 
to  contract. 

2.  Testamentary  Succession.  The  conception  of 
a  will  in  modern  times  is  taken  from  Roman  testa- 
mentary jurisprudence.  It  came  into  the  English 
law  through  the  medium  of  the  church.  Wills  of 
personal  property  were  administered  in  the  ecclesi- 
astical courts,  which  applied,  though  in  an  imper- 
fect manner,  the  principles  of  Roman  jurisprudence 
The  English  law  of  testamentary  succession  is  thus 


INTRODUCTION. 


XLl 


a  modified  form  of  the  rules  under  "which  Roman 
inheritances  were  administered. 

At  this  point,  one  may  see  the  advantages  of  a 
historical  treatment  of  the  subject.  Men  who  should 
simply  reason  upon  a  will  would  argue  that  it  would 
take  effect  at  deatli  only ;  that  it  -would  be  secret ; 
and  revocable  during  the  testator's  life.  None  of 
these  characteristics  originally  belonged  to  a  will.  It 
was  not  secret,  nor  revocable,  and  took  effect  during 
the  testator's  life. 

Many  jurists  have  asserted  that  the  right  to 
make  a  will  is  conferred  by  the  law  of  nature. 
They  would  imply  either  that  the  right  is  universal 
or  that  nations  are  prompted  to  it  by  an  original 
instinct  or  impulse.  On  the  contrary,  experience 
teaches  us  that  it  is  not  universal,  and  history  dis- 
closes to  us  that  in  all  the  early  societies,  the  condi- 
tion of  jurisprudence  in  which  testamentary  privi- 
leges are  not  allowed  precedes  that  in  which  they 
are  permitted  to  supersede  the  rights  of  kindred 
by  blood. 

This  subject  can  only  be  understood  by  glancing 
at  the  doctrine  of  TTnimeracH  Succession.  By  "  uni- 
versal succession  "  is  meant  the  case  where  one  is 
invested  with  the  legal  character  of  another,  subject 
to  all  his  liabilities  and  entitled  to  all  his  rights. 
He  becomes  the  representative  of  the  person  to 
whom  he  succeeds.  Under  the  Roman  law,  at  the 
death  of  a  person,  his  heir  became  by  inheritance 
his  "  universal  successor."   We  cannot  perhaps  easily 


xxii  INTRODUCTION 

comprehend  this  notion,  for  we  have  no  instances  in 
modern  law  of  this  kind  of  succession.  Even  in  a 
bankruptcy,  the  assignee  who  takes  all  the  debtor's 
assets,  does  not  assume  his  responsibilities.  If  he 
did,  we  would  have  the  notion  of  a  "universal 
succession." 

Now,  the  theory  of  a  will  in  ancient  law  was  to 
put  the  devisee  in  the  position  of  a  universal  suc- 
cessor. He  was  the  representative  of  the  testator 
as  completely  as  the  heir  was  of  an  intestate. 
Though  the  testator  had  ceased  to  live,  his  legal 
personality  continued  in  his  successor.  An  executor 
in  our  law  only  partially  resembles  such  a  successor, 
for  he  only  takes  the  personal  property,  and  is 
responsible  only  to  the  extent  of  the  assets  which 
he  receives. 

What,  then,  is  the  true  theory  of  an  ancient 
succession  ?  Recur  for  a  moment  to  the  idea  of  the 
family.  It  was  a  corporation,  with  the  patriarch 
at  its  head.  He  was  the  representative  of  its  rights 
and  obligations.  When  he  died,  the  family — the 
corporation — did  not  die.  Another  representative 
took  his  position  with  all  the  corporate  rights  and 
duties.  This  feature  of  the  law  of  family  was  ulti- 
mately transferred  to  the  individual,  and  when 
society  was  resolved  into  its  component  parts,  it 
continued  to  be  the  rule  that  on  the  death  of  an 
individual,  his  heirs  or  testamentary  successors  took 
his  own  legal  position.  We  may  state  the  position 
yf  the  testator  with  sufficient  accuracy  if  we  describe 


INTRODUCTION. 


XL1I» 


him  as  a  corporation  sole,  as  a  king,  who  never  dies, 
is  a  corporation  sole. 

When  a  Roman  citizen  died  without  a  will,  his 
heirs  did  not  merely  represent  him.  The}T  continued 
his  civil  existence.  This  theory  of  universal  succes* 
sion  is  peculiar  to  Roman  jurisprudence. 

A  will  at  the  outset  was  a  proceeding  by  which 
the  devolution  of  a  family  was  regulated.  It  was 
a  mode  of  declaring  the  person  who  was  to  have 
the  chieftainship  in  succession  to  the  testator.  This 
view  explains  the  connection  between  wills  and  the 
sacra  or  family  rites.  No  testament  was  allowed 
to  distribute  an  inheritance  without  a  strict  appor- 
tionment of  the  expenses  of  these  religious  cere- 
monies among  the  co-heirs.  Doubtless,  Intestate 
Inheritance  was  more  ancient  than  Testamentary 
Succession,  and  testaments  were  at  first  only  allowed 
to  take  effect  on  failure  of  the  persons  entitled  by 
blood  relationship.  In  fact,  the  only  methods  of 
continuing  a  family  where  there  was  no  succession 
of  kindred,  was  cither  a  will  or  adoption.  In  the 
Hindoo  law  the  place  filled  by  wills  is  occupied  by 
Adoptions.  To  the  Romans  belongs  the  invention 
of  a  will. 

We  are  thus  enabled  to  explain  the  primitive 
Roman  will,  which  was  executed  in  the  Comitia 
Curiata,  or  Parliament  of  Patricians,  when  assembled 
for  private  business.  The  key  to  this  proceeding  is 
to  be  sought  in  the  ancient  law  of  intestate  succes- 
sion.    The  order  of  descent  was  as  follows:  J//:sff 


XI.IV 


INTRODUCTION. 


the  direct  descendants  who  had  not  been  einancipa* 
ted ;  second,  the  nearest  Agnate,  the  nearest  person 
under  the  same  power  (patria  potestas)  as  the  de- 
ceased ;  third,  on  the  failure  of  these,  the  inheritance 
devolved  on  the  gentiles  or  the  collective  members 
of  the  dead  man's  gens  or  House.  This  House  was 
composed  of  all  the  Roman  Patricians  who  bore  the 
same  name,  and  who  were  supposed  to  be  descended 
from  a  common  ancestor.  As  the  Parliament  con- 
sisted of  a  representation  of  these  very  Houses,  the 
object  of  bringing  the  will  before  it  was  to  determine 
whether  the  testator  had  any  gentiles  whose  claims 
were  affected  by  his  will.  It  might  be  rejected  or 
allowed,  according  as  the  circumstances  of  the  case 
might  demand. 

The  modern  will  was  derived  from  a  transaction 
A-hich  was  a  conveyance  inter  vivos.  It  was  a  com- 
plete and  irrevocable  alienation  of  the  testator's 
family  and  substance  to  the  person  intended  to  be 
his  heir.  It  was  derived  from  the  Jfancipiinn  or 
Mancipation.  This  transaction  required  the  presence 
of  a  vendor  and  vendee  as  well  as  five  witnesses, 
together  with  a  person  called  a  libripens,  who  held 
a  pair  of  scales  to  weigh  the  money  employed  in 
the  proceeding.  The  testator  assumed  the  place  of 
a  vendor,  and  the  intended  successor  pretended  to 
strike  the  scales  with  a  piece  of  money.  By  this 
proceeding  he  became,  in  contemplation  of  law,  the 
purchaser  of  all  the  testator's  property  and  privi- 
leges, and  assumed  all  his  obligations.    This  trans- 


INTRODUCTION". 


XL-* 


action  vested  tlie  property  in  the  heir  immediately, 
even  tliou2:li  the  testator  survived :  and  the  latter 
could  only  continue  to  govern  his  household  by  the 
sufferance  of  the  former.  It  was  the  abdication  of 
the  corporator  in  favor  of  his  successor.  "When  Yhe 
Twelve  Tables  were  established,  the  testator  could 
not  give  any  legacies  which  would  bind  the  "  uni 
versal  successor.'1  The  doctrine  finally  came  into 
vogue  that  he  must  take  the  inheritance  subject  to 
any  burdens  imposed  upon  it  by  the  testator,  which 
might  be  created,  as  legacies,  either  orally  or  in 
writing. 

In  the  course  of  jurisprudence,  the  Praetors  or 
judges  introduced  another  kind  of  will  depending 
on  Equity.  The  requirements  of  the  Mancipatory 
Will  were  observed  so  far  as  they  furnished  security 
against  fraud.  Seven  witnesses  were  present;  the 
will  was  recited,  and  each  of  the  witnesses  affixed 
his  seal  to  the  outside.  This  kind  of  will  did  not 
confer  the  legal  title  to  the  inheritance.  It  gave 
the  "successor"  an  equitable  right  to  the  property, 
which,  after  a  year  of  undisturbed  possession,  by 
force  of  a  principle  known  as  prescription  (usuca- 
pion), ripened  into  a  legal  right  to  the  property. 

The  Mancipatory  Will  was  not  displaced  by  the 
will  of  the  Prator.  At  the  time  of  the  Empire,  an 
indifferent  person  was  made  the  "purchaser"  of  the 
testator's  rights,  who  was  called  the  emptor  f am il  'uv. 
The  person  who  was  to  receive  the  actual  benefit 
was  named  by  the  testator.  Wills  thus  became  secret 


sxYi    .  INTRODUCTION. 

A  will  then  consisted  of  two  parts:  the  conveyance 
and  a  publication.  By  the  "publication"  the  testa 
tor  declared  his  intentions  either  orally  or  in  writ- 
ing. The  conveyance  having  now  degenerated  into 
a  mere  form,  the  intention  wTas  regarded  as  the 
principal  feature  in  the  transaction,  and  wills  became 
revocable. 

At  the  time  of  Justinian,  a  will  was  introduced 
into  the  Eastern  Empire,  which  combined  the  two 
already  described,  but  it  was  employed  in  that  em- 
pire only,  and  the  mancipatory  testament,  with  all 
its  forms  of  conveyance,  continued  to  be  used  in 
"Western  Europe,  far  down  into  the  middle  ages. 

3.  Differences  between  Ancient  and  Modern  Suc- 
cession.— There  are  some  differences  between 
ancient  and  modern  ideas  on  this  subject,  which 
should  be  noticed.  Though  the  text  of  the  Twelve 
Tables  allows  the  utmost  liberty  of  testation,  yet  a 
will  does  not  seem  to  have  been  regarded  by  the 
Romans  as  a  means  of  disinheriting  a  family.  The 
principal  value  of  the  power  of  testation  was  deemed 
to  be  the  assistance  it  gave  in  making  provision  for 
a  family,  and  in  dividing  the  property  more  fairly 
than  would  have  been  done  by  the  law  of  intestate 
succession.  There  was  a  strange  dre.ul  of  intestacy 
among  the  Romans.  It  is  difficult  to  account  for 
this  sentiment  at  first  thought.  A  close  examination 
will  reveal  its  origin.  The  Roman  law  consisted  of 
two  parts :  the  civil  law,  and  the  equity  law.  By 


INTRODUCTION. 


xlvh 


the  civil  law,  only  three  classes  of  persons  were 
called  to  the  succession — uuemancipatecl  children, 
the  nearest  class  of  Agnatic  kindred,  or  members 
of  the  gens  or  family  to  which  the  intestate  be- 
longed. The  emancipated  sons  had  no  share  in  .the 
inheritance.  So  if  a  man  died  childless,  it  might 
happen  that  all  his  property  would  devolve  on  a 
class  of  persons  with  whom  he  had  no  connection, 
except  the  fiction  which  assumed  that  all  members 
of  a  gens  or  class  had  descended  from  a  common 
ancestor.  There  was  thus  a  conflict  between  natu- 
ral affection  and  legal  theories,  and  men  felt  an 
enthusiasm  for  an  institution  which  permitted  them 
to  escape  from  the  thraldom  of  legal  rules,  and  to 
give  their  property  to  the  objects  of  their  love. 

The  Prartor  by  his  equity  law  ultimately  per- 
mitted some  persons  to  succeed  who  were  not  in- 
cluded in  the  civil  law,  but  the  sentiment  which  had 
caused  a  will  to  be  so  much  regarded  in  the  mind 
of  a  Roman  outlived  the  necessity  which  had  called 
it  forth. 

The  opposite  view,  which  values  a  will  because 
it  enables  the  testator  to  divert  his  property  from 
his  family,  or  to  distribute  it  among  his  relations  in 
such  form  or  proportions  as  he  may  desire,  is  of 
modern  origin.  It  can  be  unhesitatingly  traced  to 
the  influence  of  Primogeniture.  "When  the  law  had 
established  that  all  the  land  should  pass  to  one  of 
the  heirs,  to  the  exclusion  of  the  rest,  it  was  easy  to 
reach  the  result  that  the  excluded  persons  had  no 


XLVIII 


INTRODUCTION. 


claim  npon  the  other  items  of  property.  Primo- 
geniture itself  is  modern.  There  is  not  the  faintest 
trace  of  it  among  the  Romans,  or  other  ancient  na 
tions.  Among  the  Hindoos,  when  a  son  is  born,  he 
acquires  a  vested  right  in  his  father's  property, 
which  cannot  be  sold  without  a  recognition  of  his 
joint  ownership.  It  may  even  be  divided  during  the 
father's  life,  between  him  and  his  children.  Similar 
principles  prevailed  among  the  ancient  Romans.  The 
history  of  primogeniture  thus  becomes  exceedingly 
obscure. 

The  origin  of  primogeniture  must  be  sought  in 
the  beneficiary  gifts  of  the  barbarian  chieftains  who 
invaded  the  Roman  Empire.  Similar  gifts  were  made 
on  a  great  scale  by  Charlemagne,  and  were  grants 
of  Roman  provincial  land  to 'be  holden  by  the 
beneficiary  on  condition  of  military  service.  Origi- 
nally held  at  the  pleasure  of  the  grantor,  the  gran- 
tees ultimately  succeeded  in  causing  them  to  become 
hereditary.  They  sometimes  descended  to  the 
eldest  son,  and  in  other  cases  a  different  rule  pre- 
vailed. The  method  of  descent  depended  upon 
agreement.  Similar  phenomena  occur  when  the 
feudal  law  impressed  itself  on  all  estates  of  land, 
Primogeniture  once  admitted  as  to  some  estates,  was 
Been  to  possess  some  marked  advantages,  and  spread 
with  great  rapidity  over  Europe,  largely  through 
the  instrumentality  of  family  settlements. 

The  question  recurs,  why  should  primogeniture 
diffuse  itself  so  rapidly  ?    Doubtless  it  had  an  hU- 


INTRODUCTION. 


XLIX 


toric  origin  in  some  ancient  theories  based  on  the 
idea  that,  whenever  political  power  or  public  office 
passes  by  succession,  it  follows  the  rule  of  primo- 
geniture. Proofs  of  this  are  found  in  the  Hindoo 
law.  It  spread  rapidly,  because  European  society 
had  retrograded.  Civil  societ}'  having  no  coherence 
men  threw  themselves  on  a  patriarchal  institution 
older  than  existing  organizations.  It  was  a  source 
of  strength  to  hold  the  entire  property  together 
for  the  use  of  the  family.  Power  was  concentrated 
in  a  single  hand.  After  a  time  the  notion  that  the 
land  was  held  for  the  behoof  of  the  whole  family 
wore  away.  The  refined  idea  that  uncontrolled 
power  over  property  is  equivalent  to  ownership 
came  in  contact  with  the  patriarchal  theory,  and, 
the  eldest  son  became  legal  proprietor  of  the  inher- 
itance. The  younger  brother  ceased  to  participate 
in  the  property  of  his  kinsman,  and  became  the 
priest,  soldier,  or  dependant. 

There  are  two  forms  of  primogeniture,  of  which 
that  already  described  is  the  normal  one.  In  tho 
Celtic  societies,  the  eldest  line  succeeds.  An  uncle 
may  inherit  rather  than  an  infant  son  of  the  last 
owner.  This  is  principally  true  in  the  case  of  devo- 
lution of  political  power,  such  as  the  chieftainship 
of  a  clan.  This  modification  was  doubtless  derived 
from  the  fact  that  it  is  better  to  be  governed  by  a 
grown-up  chieftain  than  by  a  child,  and  that  a 
younger  brother  is  much  more  likely  to  have  reached 
maturity  than  any  of  an  elder  brother's  descendants. 


L 


INTRODUCTION. 


4.  The  Early  History  of  Property. — Historical 
investigations  lead  us  to  depart  from  the  idea 
shadowed  forth  in  Roman  jurisprudence  and  adopted 
by  Blackstone  and  others,  that  the  origin  of  prop- 
erty is  to  be  traced  to  occupancy.  This  notion  is 
found  in  the  later  Roman  law,  and  is  the  product  of 
a  refined  jurisprudence  and  of  a  settled  condition 
of  the  laws.  It  does  not  arise  until  the  rights  of 
property  have  gained  a  sanction  from  long  practical 
inviolability,  and  is  occasioned  by  the  presumption 
that  everything  ought  to  have  an  owner.  This 
view  is  directly  contradicted  by  history.  The  social 
compact,  which  admits  occupancy,  is  made  hj  indi- 
viduals. Ancient  law,  however,  knows  nothing  of 
individuals.  It  is  concerned  only  wTith  families  and 
groups  of  beings.  This  notion  of  occupancy  as  a 
natural  right  has  had  a  powerful  influence  on 
modern  law.  From  it,  some  of  the  great  rules  of 
international  law  have  been  derived,  such  as  the  righ 
of  capture  in  war,  and  the  claim  to  new  countries 
by  discovery.  As  an  account  of  the  origin  of  prop- 
erty it  possesses  no  historical  value. 

"We  cannot  look  for  the  germ  of  the  right  of 
property  in  the  Roman  law.  We  must  go  to  an 
older  system,  and  inspect  the  customs  of  the  Hin- 
doos. The  village  community  is  there  an  organized 
patriarchal  society  and  an  assemblage  of  co-proprie- 
tors. Co-ownership  by  the  family  was  the  original 
law  of  property.  At  the  present  time,  co-ownership  is 
regarded  as  the  exceptional  condition.  In  its  simplest 


INTRODUCTION. 


T.I 


form,  the  "community"  was  a  body  of  kindred 
holding  a  domain  in  common.  It  was,  however, 
more  than  a  brotherhood  of  relatives.  It  is  an 
organized  society,  with  a  common  fund  and  complete 
machinery  for  internal  government. 

More  complicated  forms  also  appear.  Men  of 
foreign  extraction  are  admitted,  and  the  purchaser 
of  a  share  may  become  a  member  of  the  brother- 
hood. The  fiction  is  still  preserved  that  all  these 
persons  had  a  common  parentage.  If  a  family  be- 
comes extinct,  its  share  returns  to  the  common  stock. 
AVe  have  here  a  reproduction  of  the  Roman  gens  or 
clan.  Similar  inferences  are  derived  from  recent 
researches  into  Russian  villages  which  closely  resem- 
ble ancient  types. 

From  these  various  communities  we  may  get 
some  conception  of  the  manner  in  which  the  right 
of  individual  property  grew  up.  It  was  chiefly 
formed  by  the  gradual  disentanglement  of  the  sep 
arate  rights  of  individuals  from  the  blended  rights 
of  a  community.  It  would  appear  that  ownership 
followed  the  law  which  has  already  been  noticed 
in  respect  to  the  family.  As  the  family  became  dis- 
integrated, ownership  became  several  as  well  as 
joint. 

The  difficulties  in  the  way  of  the  transfer  of 
property  in  ancient  .times  were  very  great.  Convey- 
ances, being  transactions  between  organized  compa- 
nies of  men  rather  than  individuals,  were  in  a  high 
degree  ceremonious,  requiring  many  symbolical  acts 


INTRODUCTION. 


and  a  great  number  of  witnesses.  "Not  an  item  ol 
this  ceremony  could  be  safely  omitted,  not  a  gesture, 
not  a  syllable,  not  a  witness.  If  there  were  an  omis- 
sion, the  conveyance  was  void. 

The  change  gradually  produced  was  due  to  a 
classification  of  property.  One  kind  of  property 
was  considered  of  more  dignity  than  another,  and 
demanded  more  form.  The  transfer  of  the  other 
class  of  objects  could  be  made  more  sinrply.  After 
a  time  the  superior  convenience  of  the  simple  rules 
loads  to  their  extension  to  more  dignified  objects, 
and  the  ceremonious  forms  become  obsolete.  The 
classification  of  objects  was  often  quite  arbitrary.  It 
is  in  vain  to  attempt  to  refer  it  to  any  philosophical 
principle.  It  must  simply  be  viewed  historically. 
The  most  probable  explanation  is  that  those  articles 
were  especially  honored  which  were  first  known  to 
each  community.  Other  articles  were  placed  on  a 
lower  standing,  because  the  knowledge  of  their 
value  did  not  exist  until  after  the  classification  was 
made.  The  Romans  in  this  spirit  divided  all  prop- 
erty into  res  mancipi  and  res  nec  mancipi,  or,  in  other 
words,  property  which  could  only  be  sold  by  the 
ceremony  called  "Mancipation"  and  property  which 
could  be  transferred  without  that  form.  [This  is 
much  the  same  as  if  we  should  classify  all  property 
into  that  which  can  be  sold  by  deed,  and  that  which 
can  be  transferred  without  a  deed.]  The  res  man- 
cipi were  Italian  lands,  slaves,  and  beasts  of  burden. 
They  are  the  instruments  of  agricultural  labor,  and 


INTRODUCTION. 


Lin 


were  never  extended.  The  res  nec  mancipi  admit- 
ted of  indefinite  expansion.  Such  property  was 
transferred  by  simple  delivery.  As  its  items  in- 
creased in  number  and  importance,  the  advantages 
of  the  simpler  forms  became  apparent,  and  finally 
the  cumbersome  ceremony  of  mancipation  entirely 
disappeared,  and  delivery  became  the  one  great 
conveyance  of  the  law. 

It  is  true,  however,  that  there  were  some  posi- 
tive restrictions  on  alienation,  which  could  not  be 
overcome  in  this  manner.  In  some  countries,  prop- 
erty could  only  be  transferred  with  the  consent  of 
children ;  in  others,  alienation  was  altogether  prohib- 
ited. In  some,  inherited  property  could  not  be  sold, 
while  one's  own  acquisitions  were  transferable 
Very  extensive  classifications  of  this  kind  are  found 
among  the  ancient  Germans.  Ultimately  there  was 
only  one  distinction  of  importance,  that  between 
land  and  chattels,  land  being  considered  of  more 
importance  than  personal  objects  of  enjoyment. 

Another  mode  in  which  the  trammels  of  ancient 
law  were  relaxed,  was  by  prescription.  It  was  a 
positive  rule  of  the  Twelve  Tables,  that  commodi- 
ties which  had  been  for  a  very  short  period  in  pos- 
session of  a  person  became  his  property.  This  was 
a  most  useful  security  against  a  cumbrous  system  of 
conveyance.  If  the  act  of  mancipation  had  been 
performed  in  an  irregular  manner,  after  two  years 
of  possession,  the  title  became  perfect.  This  was  an 
exceedingly  important  principle,  because  it  quickly 


LTV 


INTRODUCTION. 


healed  all  defects  in  the  title  to  objects  of  enjoy 
nient. 

Still  another  method  was  by  collusive  action. 
The  plaintiff  in  a  fictitious  action,  claimed  that  the 
property  belonged  to  him.  The  defendant,  who 
was  the  real  owner,  made  no  defence,  whereupon 
the  court  adjudged  that  the  property  belonged  to 
the  plaintiff.  This  was  quite  analogous  to  the  ficti- 
tious action  iu  the  common  law  of  England,  which 
was  employed  to  destroy  entailments,  and  known 
as  a  Common  Recovery. 

The  influence  of  courts  of  law  and  their  proce- 
dure upon  property  has  been  very  great.  We  can 
only  notice  the  importance  of  the  legal  distinction 
between  property  and  possession.  In  the  Roman 
law,  the  word  possession  did  not  merely  convey  the 
idea  of  physical  detention,  but  it  also  included  the 
intent  to  insist  upon  the  ownership  of  the  thing 
detained.  Such  possessore  were  protected  by  the 
Praetor's  interdict  or  injunction,  which  was  ultimately 
moulded  into  a  shape  fitted  to  try  conflicting  claims 
to  a  disputed  possession.  Ultimately,  owners  vin- 
dicated their  claims  to  property  by  the  same  pro- 
ceeding. In  the  same  way,  the  old  real  actions  ot 
the  English  common  law,  whose  office  was  to  try 
the  title  to  land,  have  been  superseded  by  the  pos- 
Bessory  action  of  ejectment,  which  is  now  employed 
to  try  not  only  the  question  of  possession,  but  also 
of  ownership. 

Courts  of  Equity  have  also  acted  powerfully  upon 


INTRODUCTION". 


property,  by  meaca  of  the  distinction  taken  between 
legal  and  equitable  ownership.  The  Courts  of 
Equity  in  England,  as  well  as  in  Rome,  created  new 
rights  in  various  forms.  This  is  a  topic  too  extensive 
to  be  followed.  It  has  been  alluded  to,  merely  for 
the  purpose  of  showing  that  the  peculiar  notions -of 
feudal  ownership  are  not  c  be  traced  to  the  equity 
law  of  the  Roman  Praetor.  The  true  origin  of  feu 
dal  ownership  is  the  emphyteusis,  or  perpetual  rent 
of  the  Roman  law.  The  lessee  was  there  treated  as 
a  true  proprietor,  and  could  not  be  disturbed,  so 
long  as  his  rent  was  paid.  The  owner  of  the  rent 
could  reenter  upon  the  land,  if  payment  was  not 
made.  lie  also  had  a  right  of  preemption  in  case  of 
sale.  There  is  clear  evidence  that  this  system  was 
introduced  into  Germany,  in  favor  of  Roman  vete- 
rans, who  settled  upon  the  land,  with  an  agreement 
to  render  garrison  duty,  as  a  substitute  for  the  or- 
dinary quitrent.  The  special  services  rendered  to 
the  feudal  lord,  which  were  not  common  to  the 
Roman  quitrent,  were  doubtless  borrowed  from  the 
relation  of  patron  and  client. 

5.  Tlie  History  of  Contract. — The  present  con- 
dition of  society  makes  it  difficult  to  comprehend 
the  early  history  of  contract.  The  archaic  rules  of 
imperative  law  have  almost  every  where  given  way 
to  obligations  founded  on  contract.  Tl.e  mind  is 
apt  to  transfer  this  condition  to  ancient  times,  and 
even  to  have  misgivings  whether  morality  is  a  Ivan- 


LVI 


INTRODUCTION. 


cing.  This  feeling  is  often  occasioned  by  some  special 
instances  of  stupendous  fraud.  The  fact,  however, 
is  that  social  morality  has  advanced  from  a  rude  to 
a  highly  refined  conception,  and  we  look  upon 
rights  'growing  out  of  the  repose  of  confidence  in 
others,  as  entitled  to  the  protection  of  the  penal 
law. 

Jurists  have  been  led  into  the  same  error  as 
other  thinkers.  Even  the  later  Roman  lawyers  re- 
garded those  contracts,  which  involved  no  other 
ingredient  than  that  of  assent,  as  of  earlier  origin 
than  those  which  were  made  ceremoniously,  and 
looked  upon  them  as  contracts,  known  to  man  in  a 
state  of  nature.  This  twofold  error  was  adopted 
by  Rousseau.  He  regarded  the  earlier  ages  as  the 
times  of  innocence,  which  had  given  way  to  modern 
degeneracy,  and  based  his  speculations  on  the  theory 
of  a  "social  contract."  English  lawyers  laid  hold  of 
this  theory,  and,  careless  of  its  historical  relations, 
insisted  on  the  "social  contract1'  as  an  historical 
fact. 

This  theory  has  but  little  influence  at  the  pres- 
ent time,  partly  because  it  is  not  satisfactory, 
and  partly  because  men  have  ceased  to  theorize 
altogether.  Men  love  to  analyze  society  as  it  exists, 
and  reach  no  results  from  an  omission  to  call  in  the 
assistance  of  history.  The  patriarchal  origin  of 
society  leaves  but  little  room  for  the  notion  of  con- 
tract. Under  that  system,  two  members  of  a  family 
cannot  contract  with  each  other,  nor  can  the  family 


INTRODUCTION. 


Lvn 


itself  be  bound  by  the  engagements  of  its  subor 
dinate  members.  One  family  may  contract  with  ano^ 
ther,  but  only  in  the  most  ceremonious  manner. 
The  duty  resulting  from  one  man's  reliance  on  the 
word  of  another  is  one  of  the  slowest  conquests  jaf 
civilization.  There  is  nothing  in  early  times  like 
the  interposition  of  law  to  compel  the  performance 
of  a  promise.  That  promise  only  is  sanctioned  which 
is  accompanied  with  a  ceremonial ;  and  if  the  cere- 
monies be  performed,  the  promise  will  be  carried 
out,  though  obtained  through  duress  or  deception. 
This  strictness  slowly  gives  way — steps  in  the  cere- 
mony are  dispensed  with  or  simplified,  some  con- 
tracts of  the  most  practical  importance  are  separated 
from  the  rest,  and  entered  into  without  cumbrous 
forms.  Ultimate^  the  mental  engagement  is 
principally  regarded.  The  Romans  distinguished 
between  the  two  classes  of  cases,  calling  the  cere- 
monious engagements,  contracts,  and  those  in  which 
no  ceremonies  were  necessary,  pacts.  In  the  pro- 
gress of  jurisprudence,  contracts  were  absorbed  by 
pacts. 

The  progress  of  this  change  it  is  important  to 
notice.  The  early  term  for  contracts  was  n(xum} 
and  the  parties  to  a  contract  were  said  to  be  con- 
nected by  a  strong  bond  or  chain.  The  definition 
of  nexum  is  "  every  transaction  with  the  copper 
and  balance."  This  is  also  the  definition  of  a  con- 
veyance. We  thus  have  a  contract  confounded 
witli  a  conveyance.    This  view  is  in  entire  opposi 


LVIII 


INTRODUCTION. 


tion  to  mod<  rn  notions.  We  carefully  distinguish 
between  the  proprietary  rights  created  by  convey 
ances  and  the  obligations  created  by  contrail*.  In 
the  ancient  law,  the  same  forms  were  used  in  a  con- 
veyance as  were  employed  in  a  contract.  After  a 
time,  the  notion  of  a  contract  is  disengaged  from 
that  of  a  conveyance.  Conveyances  are  called  by  a 
new  name,  mancipation,  Avhile  neccum  designates 
the  ceremony  when  applied  to  a  contract.  The 
process  may  be  conjectured  to  have  taken  place  in 
this  manner:  If,  for  example,  the  transaction  con- 
cerned the  sale  of  a  slave,  the  purchaser  was  present 
with  his  money,  and  a  third  person  with  scales  to 
weigh  it.  While  the  transfer  was  being  made,  the 
bond  (nexum)  continued,  but  when  the  sale  was 
completed,  the  "  bond  y  was  at  an  end.  If  the  slave 
was  transferred,  but  the  money  was  not  paid,  the 
"  nexum  "  continued  on  the  purchaser's  part,  but  not 
on  that  of  the  seller.  If  neither  party  completed 
the  transaction,  the  ordinary  executory  contract  of 
sale  is  made.  UndeV  this  view,  a  contract  was  re- 
garded as  an  incomplete  conveyance.  If  this  view  be 
correct,  we  reach  a  conclusion  in  direct  opposition  to 
that  of  manv  modern  theorists,  who  regard  contracts 
as  of  paramount  importance  in  the  early  law.  We 
also  see  why  the  ancient  law  was  so  severe  upon 
debtors,  and  why  it  gave  such  extravagant  powers 
to  creditors.  Indebtedness  was  considered  as  an 
anomaly,  and  looked  upon  with  disfavor,  for  accord' 


INTRODUCTION. 


LIX 


ing  to  principle,  the  price  of  a  commodity  should" 
have  been  paid  when  the  sale  was  made. 

It  is  necessary,  however  to  analyze  more  closely, 
and  to  distinguish  between  contracts  and  pacts.  A 
pact  was  only  the  engagement  of  individuals,  without 
those  solemnities  which  were  necessary  to  a  contract. 
An  ohligation  must  have  been  attached  by  law  to  a 
pact  before  it  became  a  contract.  It  is  very  import- 
ant to  notice,  that  in  the  old  law,  an  engagement 
does  not  constitute  a  contract.  An  obligation  must 
be  annexed  by  the  law  in  the  plenitude  of  its  power. 
The  law  bound  the  parties  together,  and  the  cJiain 
could  only  be  broken  by  a  legal  process.  It  is 
singular  that  ohligation  meant  the  right  to  have  a 
debt  paid,  as  well  as  the  duty  to  pay  it. 

In  the  later  Roman  law,  pacts  were  nearly  in 
every  case  connected  with  legal  obligations,  but  in 
tracing  the  history  of  the  subject,  we  find  in  the 
course  of  its  development,  the  contract  classified 
into  four  kinds  :  verbal,  literal,  real,  and  consensual. 
These  names  were  given  from  the  formalities  which 
were  required  beyond  mere  consent. 

(1).  The  Verbal  Contract — Here  a  particular 
form  of  words  must  be  employed.  This  was  doubt- 
less the  most  ancient  form  of  contract.  It  involved 
the  necessity  of  a  question  and  an  answer.  The 
question  was  always  put  by  the  promisee,  and  the 
Miawer  given  by  the  promisor.  It  was  technical 
\u  its  form,  and  must  be  scrupulously  followed. 


INTRODUCTION". 


Though  not  framed  for  any  reasons  of  convenience, 
it  had  its  practical  advantages.  It  arrested  the 
promisor's  attention,  and  fixed  his  mind  on  the  exact 
engagement  which  he  was  making.  This  is  in  direct 
opposition  to  modern  theories,  for  we  look  at  a  con« 
tract  from  the  point  of  view  of  the  promisor.  The 
person  who  asks  the  question,  is  called  the  stipulator,, 
and  the  act  of  asking  it  and  receiving  the  answer, 
stipulatio. 

(2)  .  The  Literal  Contract. — This  consisted  of 
the  entry  of  the  amount  due  on  the  debit  side  of  a 
ledger.  This  contract  depended  on  the  great  regu- 
larity of  ancient  book-keeping.  It  was  the  practice 
for  each  member  of  a  family,  after  entering  items  of 
receipt  and  expenditure  in  a  waste  book,  to  transfer 
them  to  a  general  ledger.  It  is  not  known  whether 
the  entry  in  the  creditor's  books  was  sufficient  to 
constitute  the  contract,  or  whether  it  was  also  ne- 
cessary that  the  debtor  should  make  a  correspond- 
ing statement.  At  all  events,  if  a  proper  eutry  was 
made,  formalities  essential  in  the  verbal  contract 
were  not  required.  We  thus  have  a  second  relaxa- 
tion of  the  rigid  law  of  early  contracts. 

(3)  .  Real  Contracts. — The  delivery  of  the  thing 
agreed  upon,  raised  an  obligation  on  the  part  of  the 
receiver  to  complete  the  contract.  This  view  was  a 
great  departure  from  the  law  of  "  ceremonious 1 


INTRODUCTION. 


contracts,  and  for  the  first  time  introduced  the  ele- 
ment  of  moral  obligation  into  this  branch  of  law. 

(4).  Consensual  Contracts. — These  very  import* 
ant  contracts  depend  for  their  validity,  purely  upon 
mutual  assent.  There  are  four  of  this  class,  which 
embraces  those  contracts  that  are  the  most  import- 
ant in  the  intercourse  of  life.  No  formalities  are 
requisite.  The  law  attaches  its  obligation  or  chain 
to  the  mere  assent  or  pact.  The  mere  consent  draws 
with  it  the  obligation  in  the  same  manner,  as  the 
question,  book  entry,  and  delivery  attract  it  in  other 
contracts.  Contracts  belonging  to  this  class  are 
agency,  sale,  partnership,  and  letting  and  hiring 
(bailment).  The  great  importance  and  frequency 
of  these  transactions,  without  doubt,  led  the  Romans 
to  relieve  them  from  all  technical  rules.  This  was 
doubtless  the  case  with  other  nations,  so  that  these 
contracts  were  deemed  to  be  contracts  by  the  "  law 
of  nations,"  and  ultimately  by  the  "  law  of  nature," 
until  the  singular  notion  prevailed,  that  the  earlier 
the  civilization,  the  simpler  the  contract. 

From  this  time  forward,  consent  came  to  be  re- 
garded as  the  principal  ingredient  in  a  contract. 
The  "  consensual "  contracts  were  looked  upon  with 
peculiar  favor.  Although  the  Praetors  could  not 
extend  their  number,  it  was  determined  to  give 
equitable  actions  in  every  case  in  which  a  pact  was 
founded  on  a  consideration.  In  this  way  new  con- 
sensual contracts  were  introduced,  although  not  so 


LXII 


INTRODUCTION. 


termed.  If  they  were  without  consideration,  the 
Praetors  would  not  enforce  them.  It  was  then  ne- 
cessary to  make  the  contract  formal,  by  means  of 
"  question  and  answer." 

This  history  of  the  progress  of  Roman  law,  is 
probably  typical  of  all  ancient  law  in  its  progress 
up  to  a  certain  point.  Some  of  its  features  are  ex- 
clusively Roman,  such  as  the  nature  of  "  Obligation  " 
and  the  "Theory  of  Natural  Law." 

The  influence  of  Jurisprudence  upon  other 
branches  of  science  has  been  remarkable.  It  is  es- 
pecially noticeable  in  Politics,  Moral  Philosophy,  and 
Theology.  That  part  of  the  law  which  has  been 
most  extensively  influential,  is  the  law  of  obligation, 
or  contract,  and  the  law  of  wrongs  (delicts).  In 
politics,  from  a  confusion  of  distinct  legal  notions 
was  derived  the  error  which  attributed  political 
rights  and  duties  to  an  original  compact  between 
the  governors  and  governed.  The  law  furnished  a 
body  of  words  and  phrases,  which  approximated  in 
meaning  to  the  ideas  which  .were  forming  on  the 
subject  of  political  obligation. 

In  Moral  Philosophy,  ancient  law  has  been  more 
directly  laid  under  contribution.  As  long  as  ethical 
science  concerned  itself  with  the  practical  rules  of 
conduct,  it  was  affected  by  Roman  law.  Moral 
Philosophy  was  originally  incorporated  with  Theo. 
logy.  Its  relation  to  Jurisprudence  was  less  close 
when  it  came  to  be  cultivated  by  the  great  Spanish 
moralists.  "  Moral  Theology  "  then  degenerated  into 


INTRODUCTION". 


LXIII 


Casuistry.  Under  the  guidance  of  Protestants,  a 
new  science  of  Moral  Philosophy  abandoned  the 
path  which  the  "  Moral  Theologians"  had  followed, 
and  Roman  law  again  exercised  its  influence  on 
ethical  inquiry.  > 

There  is  no  branch  of  knowledge  which  has  been 
so  little  affected  by  Roman  law  as  Metaphysics. 
Discussions  upon  metaphysical  questions  were  con- 
ducted in  Greek,  or  in  a  dialect  constructed  to  give 
expression  to  Greek  conceptions.  The  problems  of 
Metaphysics  which  have  been  most  strongly  agitated 
in  Western  Europe,  betray  a  legal  parentage.  No 
Greek-speaking  people  has  ever  been  seriously  per- 
plexed by  the  question  of  free  will  and  necessity. 
No  such  people  ever  showed  the  smallest  capacity 
for  producing  a  philosophy  of  law.  The  problem 
of  free  will  arises  when  we  contemplate  a  metaphys- 
ical conception  under  a  legal  aspect.  This  concep- 
tion was  theological  before  it  became  philosophical. 
Note  the  difference  between  the  various  topics  of 
theological  speculation  in  the  two  branches  of  the 
Roman  Empire.  The  Greek  mind  engaged  in  pro- 
found controversies  as  to  the  divine  person,  the 
divine  substance  and  the  divine  nature.  The 
Western  Church  discussed  the  nature  of  sin,  and 
its  transmission  by  inheritance,  the  atonement,  the 
antagonism  between  freewill  and  divine  Providence. 
Why  are  these  problems  so  strikingly  different? 
We  answer  unhesitatingly  that  in  the  West,  theolo- 
gical speculation  had  passed  from  a  region  of  Greek 

E 


LXIV 


INTRODUCTION. 


metaphysics  to  Roman  law.  The  substratum  of  law 
iu  "Western  theology  lies  exceedingly  deep.  Though 
for  a  time  its  doctrines  were  almost  buried  undel 
Aristotelian  philosophy,  yet  at  the  Reformation 
they  were  extricated.  It  is  difficult  to  say  whether 
the  system  of  Calvin  or  of  Arminius  has  the  more 
marked  legal  character. 

Besides,  the  Roman  law  of  contracts  had  a  strong 
influence  upon  institutions.  Feudalism  is  com- 
pounded of  barbaric  usage  and  Roman  law.  "While 
it  resembled  in  some  respects  a  Hindoo  village  com- 
munity, it  is  in  other  respects  quite  different.  The 
Hindoo  communities  gathered  together  by  instinct, 
and  new  comers  were  introduced  by  fiction.  The 
feudal  obligation  was  created  by  contract.  The 
feudal  communities  were,  for  this  reason,  more 
durable  and  varied  in  character  than  the  ancient 
societies.  Some  would  hold  that  the  variety  of 
modern  civilization  is  due  to  the  exuberant  and 
erratic  genius  of  Germanic  races.  In  opposition  to 
this  error,  it  may  be  asserted  that  the  Roman  Em- 
pire bequeathed  to  society  the  legal  conception  to 
which  all  this  variety  is  attributable.  The  one 
striking  and  characteristic  fact  in  the  customs  and 
institutions  of  barbaric  races  is  their  extreme  uni- 
formity. 

6.  Delict  or  Crime — All  known  collections  of 
ancient  law  are  characterized  by  a  feature  which 
broadly  distinguishes  them  from  matured  systems 


INTRODUCTION. 


of  jurisprudence.  The  proportion  of  civil  to  crimi- 
nal law  is  very  different  in  the  two  cases.  The 
elder  the  system,  the  fuller  and  more  minute  the 
penal  legislation.  The  poverty  of  civil  law  is  due 
to  the  plan  on  which  the  family  is  organized.  TheYe 
is  no  corresponding  limitation  in  reference  to  penal 
law,  and  it  is  also  probable  that  the  infancy  of  na« 
tions  is  a  period  of  ungoverned  violence. 

This  early  penal  law  is  not  a  true  criminal  law. 
In  all  matured  systems,  a  sharp  distinction  is  drawn 
between  crimes  and  wrongs.  In  the  one,  the  act  is 
regarded  with  reference  to  the  State  ;  in  the  other, 
with  reference  to  the  individual  injured.  In  ancient 
law,  the  act  was  only  regarded  with  reference  to  the 
individual.  He  proceeds  by  a  civil  action,  and 
recovers  compensation  in  the  shape  of  money.  In 
the  Twelve  Tables,  the  chief  civil  wrong  is  theft. 
Those  offences  which  are  now  termed  crimes,  were 
treated  exclusively  as  torts  or  wrongs.  The  same 
fact  is  perceived  in  the  consolidated  laws  of  the 
Germanic  tribes.  In  the  infancy  of  jurisprudence, 
the  citizen  depends  for  protection  against  violence 
or  fraud,  not  on  the  law  of  crime,  but  on  the  law  of 
tort.  It  should  also  be  noticed  that  sins  are  known 
to  primitive  societies.  There  were  in  the  Athenian 
and  Roman  States  laws  punishing  sins  as  well  as 
torts.  The  ordinances  against  the  former  were  based 
on  the  conception  of  an  offence  against  God ;  the 
provisions  against  the  latter,  on  the  conception  of 
an  offence  against  one's  neighbor.    The  idea  of  au 


iayi 


INTRODUCTION. 


offence  against  the  State  did  not  at  first  produce  a 
true  criminal  jurisprudence. 

The  conception  of  a  wrong  done  to  the  State, 
however,  was  not  wanting.  The  State  was  thought 
to  suffer  a  personal  injury,  and  avenged  itself  on 
the  criminal  by  a  single  act.  Every  offence  was 
punished  by  a  special  act  of  the  legislative  power. 
The  trial  of  an  offender  was  wholly  irregular.  The 
proceeding  was  the  same  in  form  as  the  enactment 
of  an  ordinary  statute.  After  regular  criminal 
procedure  came  into  vogue,  the  people  still  retained 
the  power  of  punishing  offences  by  a  special  law. 

It  may  be  urged  that  the  State  has  from  the 
earliest  period  compelled  the  wrong  doer  to  com- 
pound for  his  wrong,  and  that  this  interference  must 
have  depended  upon  the  fact  that  it  was  injured.  The 
State,  however,  only  interfered  in  the  character  of 
arbitrator  between  two  litigants,  and  received  com- 
pensation for  its  trouble  and  loss  of  time.  This  is 
shown  by  the  sums  paid  in  the  progress  of  an  action 
in  the  Roman  law  (Saeramenta),  and  by  the  sub- 
jects described  by  Homer  on  the  shield  of  Achilles. 
It  is  still  further  shown  by  the  fact  that  the  court, 
in  awarding  damages,  took  a  its  guide  the  measure 
of  vengeance  likely  to  be  exacted  by  the  aggrieved 
person  under  all  the  circumstances.  This  is  the  ex- 
planation of  the  different  penalties  imposed  on 
offenders  caught  in  the  act  of  committing  crime,  and 
on  those  detected  after  considerable  delay.  The 
men  of  ancient  times  had  none  of  the  scruples  of 


INTRODUCTION. 


L.YYU 


modern  judges  in  discriminating  between  tlie  de- 

JO  O 

grees  of  criminality  wliicli  belong  to  offences  falling 
within  the  same  description.  They  look  only  at 
the  impulses  of  the  injured  person,  and  follow  the 
rise  and  fall  of  his  passions.  > 

The  earliest  criminal  tribunals  were  mere  com- 
mittees of  the  legislature.  The  popular  assembly 
delegated  its  functions  to  a  commission  quite  analo- 
gous to  the  committee  of  a  modern  legislative  body, 
except  that  it  did  not  report  to  the  legislature, 
but  itself  rendered  a  final  decision.  Some  of  these 
commissions  resembled  modern  standing  committees, 
and  were  appointed  regularly  every  year.  There 
was  no  true  criminal  law  at  Rome,  until  B.  C.  149. 
A  Calpurnian  law  then  provided  a  permanent  com- 
mission for  the  trial  of  offences  under  that  act,  and 
judges  were  selected  from  particular  classes,  and 
renewed  in  conformity  with  definite  rules.  This 
W&6  a  regular  criminal  judicature.  These  commis- 
sions were  always  regarded  as  mere  committees  of 
the  popular  assembly.  Two  important  consequences 
followed.  One  was  that  the  legislature  could  always 
try  the  case  as  a  special  offence,  and  the  other  that 
the  punishment  of  death  could  not  be  inflicted  by 
the  commission,  because  it  could  have  no  greater 
powers  than  the  legislative  body  whence  it  ema- 
nated, which  could  not  itself  inflict  death. 

Two  additional  peculiarities  should  be  men- 
tioned; the  great  number  of  Roman  tribunals,  and 
the  capricious  classification  of  crimes.  Both  of  these 


LXVIII 


INTRODUCTION". 


are  explained  by  the  historical  account  already 
given.  As  each  commission  for  the  trial  of  crime 
had  its  origin  in  a  distinct  statute,  which  was  pass- 
ed to  meet  an  existing  emergency,  the  commissions 
were  naturally  very  numerous,  and  without  any 
connection.  It  became  very  difficult  to  draw  any 
exact  lines  between  the  different  commissions.  This 
result  was  not  only  inconvenient  but  oppressive, 
for  if  there  was  doubt  as  to  the  particular  statute 
under  which  a  crime  should  be  ranged,  an  alleged 
criminal  could  be  indicted  before  several  commis- 
sions, so  that  if  he  was  acquitted  by  one,  he  could 
be  condemned  by  another.  Though  this  anomaly 
was  abolished  by  the  Emperors,  yet  the  classifica- 
tion of  crimes  remained  remarkably  capricious.  The 
only  principle  on  which  acts  were  associated,  was 
that  they  had  been  made  criminal  offences  at 
the  same  time,  and  by  the  same  statute.  Tims 
perjury  was  classed  with  cutting,  wounding,  and 
poisoning,  because  a  law  of  Sylla  had  given  juris- 
diction over' these  forms  of  crime  to  the  same  com- 
mission. Finally,  criminal  law  w  as  extended  by  a 
new  description  of  offences  called  crimina  extvaor- 
dinaria.  These  were  offences  originally  treated 
merely  as  wrongs.  In  the  progress  of  social  ideas, 
the  injured  party  was  allowed  to  pursue  them  as 
crimes  ;  adopting  a  mode  of  redress  differing  from 
the  ordinary  procedure. 

The  theory  and  practice  of  criminal  justice  under 
the  Empire  has  had  a  powerful  effect  on  modern 


INTRODUCTION. 


LXI3 


society.  There  was  at  first  committed  to  tlie  Senate 
an  extensive  criminal  jurisdiction ;  it  was  ultimately 
transferred  to  magistrates,  nominated  by  the  Em- 
peror, with  an  appeal  to  the  Imperial  Privy  Council. 
From  this  source  was  derived  the  doctrine,  familyir 
to  modern  peoples,  that  the  sovereign  is  the  fountain 
of  all  justice,  and  the  depositary  of  all  grace.  This 
theory  was  the  fruit  of  the  centralization  of  the  Em- 
pire. It  saved  modern  society  from  passing  through 
the  series  of  changes  illustrated  by  the  history  of 
the  commissions  (qucestiones).  The  development 
of  criminal  law  was  hastened  by  two  causes ;  the 
memory  of  the  Roman  Empire,  and  the  influence 
of  the  Church.  Two  assumptions  were  contended 
for  by  the  Church,  one  that  each  feudal  ruler  might 
be  assimilated  to  the  Roman  magistrates  spoken  of 
by  St.  Paul,  and  the  other  that  the  offences  which 
he  was  to  chastise  were  those  selected  in  the  Mo- 
siac  commandments.  Thus  heresy  and  perjury  were 
ecclesiastical  offences,  and  the  Church  only  admitted 
the  co-operation  of  the  secular  arm;  while  murder 
and  robbery  were  under  the  jurisdiction  of  civil 
rulers,  not  by  the  accident  of  their  position,  but  as 
an  express  ordinance  of  God. 


) 


ANCIENT  LAW. 


CHAPTER  I. 

ANCIENT  CODES. 

Tiie  most  celebrated  system  of  jurisprudence  known 
to  the  world  begins,  as  it  ends,  with  a  Code.  From 
the  commencement  to  the  close  of  its  history,  the 
expositors  of  Roman  Law  consistently  employed 
language  which  implied  that  the  body  of  their 
system  rested  on  the  Twelve  Decemviral  Tables, 
and  therefore  on  a  basis  of  written  law.  Except 
in  one  particular,  no  institutions  anterior  to  the 
Twelve  Tables  were  recognised  at  Rome.  The 
theoretical  descent  of  Roman  jurisprudence  from  a 
code,  the  theoretical  ascription  of  English  law  to 
immemorial  unwritten  tradition,  were  the  chief 
reasons  why  the  development  of  their  system  dif- 
fered from  the  development  of  ours.  Neither  the- 
ory corresponded  exactly  with  the  facts,  but  each 
produced  consequences  of  the  utmost  importance. 

I  need  hardly  say  that  the  publication  of  the 
t 


2 


AXOIEXT  CODES. 


CHAP.  I, 


Twelve  Tables  is  not  the  earliest  point  at  which  we 
can  take  up  the  history  of  law.  The  ancient  Roman 
code  belongs  to  a  class  of  which  almost  every  civil 
jsed  nation  in  the  workl  can  show  a  sample,  and 
which,  so  far  as  the  Roman  and  Hellenic  worlds 
were  concerned,  were  largely  diffused  over  *l\em  at 
epochs  not  widely  distant  from  one  another.  They 
appeared  under  exceedingly  similar  circumstances, 
and  were  produced,  to  our  knowledge,  by  very 
similar  causes.  Unquestionably,  many  jural  phe- 
nomena lie  behind  these  codes  and  preceded  them 
in  point  of  time.  Not  a  few  documentary  records 
'  exist  which  profess  to  give  us  information  concern- 
ing the  early  phenomena  of  law ;  but,  until  philology 
has  effected  a  complete  analysis  of  the  Sanskrit  lit- 
erature, our  best  sources  of  knowledge  are  undoubt- 
edly the  Greek  Homeric  poems,  considered  of  course 
not  as  a  history  of  actual  occurrences,  but  as  a  de- 
scription, not  wholly  idealised,  of  a  state  of  society 
known  to  the  writer.  However  the  fancy  of  the 
poet  may  have  exaggerated  certain  features  of  the 
heroic  age,  the  prowess  of  warriors  and  the  potency 
of  gods,  there  is  no  reason  to  believe  that  it  has 
tampered  with  moral  or  metaphysical  conceptions 
which  were  not  yet  the  subjects  of  conscious  obser- 
vation ;  and  in  this  respect  the  Homeric  literature 
is  for  more  trustworthy  than  those  relatively  later 
documents  which  pretend  to  give  an  account  of 
times  similarly  early,  but  which  were  compiled  un- 
der philosophical  or  theological  influences.    If  by 


CH.vr.  l 


RUDIMENTARY  JURAL  IDEAS. 


any  means  we  can  determine  the  early  forms  of 
jural  conceptions,  they  will  "be  invaluable  to  us. 
These  rudimentary  ideas  are  to  the  jurist  what  the 
primary  crusts  of  the  earth  are  to  the  geologist. 
They  contain,  potentially,  all  the  forms  in  which  lAw 
has  subsequently  exhibited  itself.  The  haste  or  the 
prejudice  which  has  generally  refused  them  all  but 
the  most  superficial  examination,  must  bear  the 
blame  of  the  unsatisfactory  condition  in  which  we 
find  the  science  of  jurisprudence.  The  inquiries  of 
the  jurist  are  in  truth  prosecuted  much  as  inquiry 
in  physics  and  physiology  was  prosecuted  before 
observation  had  taken  the  place  of  assumption. 
Theories,  plausible  and  comprehensive,  but  absolu- 
tely unverified,  such  as  the  Law  of  Nature  or  the 
Social  Compact,  enjoy  a  universal  preference  over 
sober  research  into  the  primitive  history  of  society 
and  law ;  and  they  obscure  the  truth  not  only  by 
diverting  attention  from  the  only  quarter  in  which 
it  can  be  found,  but  by  that  most  real  and  most  im- 
portant influence  which,  when  once  entertained  and 
believed  in,  they  are  enabled  to  exercise  on  the  later 
stages  of  jurisprudence. 

The  earliest  notions  connected  with  the  concep- 
tion, now  so  fully  developed,  of  a  law  or  rule  of  life, 
ire  those  contained  in  the  Homeric  words  "Themis" 
and  " Theiuistes."  .  "Themis,"  it  is  well  known,  ap- 
pears in  the  later  Greek  pantheon  as  the  Goddess  of 
Justice,  but  this  is  a  modern  and  much  developed 
idea,  and  it  is  in  a  very  different  sense  that  Themis 


4 


ANCIENT  CODES. 


CHAP.  I. 


is  described  in  the  Iliad  as  the  assessor  of  Zeus.  It 
is  now  clearly  seen  hy  all  trustworthy  observers  of 
the  primitive  condition  of  mankind  that,  in  the  in 
fancy  of  the  race,  men  could  only  account  for  sus- 
tained or  periodically  recurring  action  by  supposing 
a  personal  agent.  Thus,  the  wind  blowing  was  a 
person  and  of  course  a  divine  person  ;  the  sun 
rising,  culminating,  and  setting  was  a  person  and  a 
divine  person  ;  the  earth  yielding  her  increase  was 
a  person  and  divine.  As,  then,  in  the  physical 
world,  so  in  the  moral.  When  a  king  decided  a 
dispute  by  a  sentence,  the  judgment  was  assumed  to 
be  the  result  of  direct  inspiration.  The  divine 
agent,  suggesting  judicial  awards  to  kings  or  to 
gods,  the  greatest  of  kings,  was  Themis.  The  pecu- 
liarity of  the  conception  is  brought  out  by  the  use 
of  the  plural.  Themistes,  Themises,  the  plural  of 
Themis,  are  the  awards  themselves,  divinely  dic- 
tated to  the  judge.  Kings  are  spoken  of  as  if  they 
had  a  store  of  "  Themistes  "  ready  to  hand  for  use ; 
but  it  must  be  distinctly  understood  that  they  are 
not  laws,  but  judgments,  or,  to  take  the  exact  Teu- 
tonic equivalent,  "  dooms."  "Zeus,  or  the  human 
king  on  earth,"  says  Mr.  Grote,  in  his  History  of 
Greece,  "is  not  a  law-maker,  but  a  judge."  lie  is 
provided  with  Themistes,  but,  consistently  with 
the  belief  in  their  emanation  from  above,  they  can- 
not be  supposed  to  be  connected  by  any  thread  of 
principle;  they  are  separate,  isolated  judgments. 
Even  in  the  Homeric  poems,  we  can  see  that 


chap,  i.  THEMISTES.  5 

these  ideas  are  transient.  Parities  of  circumstance 
were  probably  commoner  in  the  simple  mechanism 
of  ancient  society  than  they  are  now,  and  in  the 
succession  of  similar  cases  awards  are  likely  to  fol- 
low and  resemble  each  other.  Here  we  have  the 
germ  or  rudiment  of  a  custom,  a  conception  poste- 
rior to  that  of  Themistes  or  judgments.  However 
strongly  we,  with  our  modern  associations,  may  be 
inclined  to  lay  down  a  priori  that  the  notion  of  a 
Custom  must  precede  that  of  a  judicial  sentence, 
and  that  a  judgment  must  affirm  a  Custom  or  pun- 
ish its  breach,  it  seems  quite  certain  that  the  his- 
torical order  of  the  ideas  is  that  in  -which  I  have 
placed  them.  The  Homeric  word  for  a  custom  in 
the  embryo  is  sometimes  "  Themis  "  in  the  singular 
— more  'often  "  Dike,''  the  meapiug  of  which  visibly 
fluctuates  between  a  "judgment"  and  a  "custom" 
or  14  usage."  No/uog,  a  Law,  so  great  and  famous  a 
term  in  the  political  vocabulary  of  the  later  Greek 
society,  does  not  occur  in  Homer. 

The  notion  of  a  divine  agency,  suggesting  the 
Themistes,  and  itself  impersonated  in  Themis,  must 
be  kept  apart  from  other  primitive  beliefs  with 
which  a  superficial  inquirer  might  confound  it.  The 
conception  of  the  Deity  dictating  an  entire  code  or 
body  of  law,  as  in  the  case  of  the  Hindoo  laws  of 
Menu,  seems  to  belong  to  a  range  of  ideas  more  re- 
cent and  more  advanced.  "  Themis  "  and  "  Themis- 
tes "  are  much  lc.-s  remotely  linked  with  that  per- 
suasion which  clung  so  long  and  so  tenaciously  to 


3 


ANCIENT  CODES. 


CHAP.  I. 


the  human  mind,  of  a  divine  influence  underlying 
and  supporting  every  relation  of  life,  every  social 
institution.  In  early  law,  and  amid  the  rudiments 
of  political  thought,  symptoms  of  this  belief  meet 
us  on  all  sides.  A  supernatural  presidency  is  sup- 
posed to  consecrate  and  keep  together  all  the  cardi- 
nal institutions  of  those  times,  the  State,  the  Race, 
aud  the  Family.  Men,  grouped  together  in  the  dif- 
ferent relations  which  those  institutions  imply,  are 
bound  to  celebrate  periodically  common  rites  and 
to  offer  common  sacrifices  ;  and  every  now  and  then 
the  same  duty  is  even  more  significantly  recognised 
in  the  purifications  and  expiations  which  they  per- 
form, and  which  appear  intended  to  deprecate  pun- 
ishment for  involuntary  or  neglectful  disrespect. 
Everybody  acquainted  with  ordinary  classical  lit- 
erature will  remember  the  sacra  gentilicia,  which 
exercised  so  important  an  influence  on  the  early 
Roman  law  of  adoption  and  of  wills.  And  to  this 
hour  the  Hindoo  Customary  Law,  in  which  some  of 
the  most  curious  features  of  primitive  society  are  ste- 
reotyped, makes  almost  all  the  rights  of  persons  and 
all  the  rules  of  succession  hinge  on  the  due  solemni- 
sation  of  fixed  ceremonies  at  the  dead  man's  funeral, 
that  is,  at  every  point  where  a  breach  occurs  in  the 
continuity  of  the  family. 

Before  we  quit  this  stage  of  jurisprudence,  a 
caution  may  be  usefully  given  to  the  English  stu- 
dent. Bentham,  in  his  "Fragment  on  Government," 
and  Aii-tin,  in  his  "Province  of  Jurisprudence  De- 


CHAP.  I. 


BENTHAM'S  ANALYSIS. 


7 


fcermined,"  resolve  every  law  into  a  command  of 
the  lawgiver,  an  obligation  imposed  thereby  on  the 
citizen,  and  a  .sanction  threatened  in  the  event  of 
disobedience ;  and  it  is  further  predicated  of  the 
command,  which  is  the  first  element  in  a  law,  that 
it  must  prescribe,  not  a  single  act,  but  a  series  or 
number  of  acts  of  the  same  class  or  kind.  The 
results  of  this  separation  of  ingredients  tally  exactly 
with  the  facts  of  mature  jurisprudence ;  and,  by  a 
little  straining  of  language,  they  may  be  made  to 
correspond  in  form  with  all  law,  of  all  kinds,  at  all 
epochs.  It  is  not,  however,  asserted  that  the  notion 
of  law  entertained  by  the  generality  is  even  now 
(piite  in  conformity  with  this  dissection ;  and  it  is 
curious  that,  the  farther  we  penetrate  into  the  prim- 
itive history  of  thought,  the  farther  we  find  our- 
selves from  a  conception  of  law  which  at  all  resem- 
bles a  compound  of  the  elements  which  Bentham 
determined.  It  is  certain  that,  in  the  infancy  of 
mankind,  no  sort  of  legislature,  not  even  a  distinct 
author  of  law,  is  contemplated  or  conceived  of. 
Law  has  Scarcely  reached  the  footing  of  custom  ;  it 
i>  rather  a  habit.  It  is,  to  use  a  French  phrase,  "  in 
the  air."  The  only  authoritative  statement  of  right 
and  wrong  is  a  judicial  sentence  after  the  facts,  not 
one  pi  ('supposing  a  law  which  has  been  violated, 
but  one  which  is  .breathed  for  the  first  time  1»\  a 
higher  power  into  the  judge's  mind  at  the  moment 
of  adjudication.  It  is  of  course  extremely  difficult 
for  us  to  realise  a  view  so  far  removed  from  us  ii; 


8 


ANCIENT  CODES. 


CHAP,  t 


point  both  of  time  and  of  association,  but  it  will  be- 
come more  credible  when  we  dwell  more  at  length 
on  the  constitution  of  ancient  society,  in  which  every 
man,  living  during  the  greater  part  of  his  life  under 
the  patriarchal  despotism,  was  practically  controlled 
in  all  his  actions  by  a  regimen  not  of  law  but  of  ca- 
price. I  may  add  that  an  Englishman  should  be 
better  able  than  a  foreigner  to  appreciate  the  his- 
torical fact  that  the  "  Themistes"  preceded  any  con- 
ception of  law,  because,  amid  the  many  inconsistent 
theories  which  prevail  concerning  the  character  of 
English  jurisprudence,  the  most  popular,  or  at  all 
events  the  one  which  most  affects  practice,  is  cer- 
tainly a  theory  which  assumes  that  adjudged  cases 
and  precedents  exist  antecedently  to  rules,  princi- 
ples, and  distinctions.  The  "Themistes"  have  too, 
it  should  be  remarked,  the  characteristic  which,  in 
the  view  of  Bentham  and  Austin,  distinguishes 
single  or  mere  commands  from  laws.  A  true  law 
enjoins  on  all  the  citizens  indifferently  a  number  of 
acts  similar  in  class  or  kind  ;  and  this  is  exactly  the 
feature  of  a  law  which  has  most  deeply  impressed 
itself  on  the  popular  mind,  causing  the  term  "law  " 
to  be  applied  to  mere  uniformities,  successions,  and 
similitudes.  A  command  prescribes  only  a  single 
act,  and  it  is  to  commands,  therefore,  that  "  The- 
mistes "  are  more  akin  than  to  laws.  They  are 
simply  adjudications  on  insulated  states  of  fact,  and 
do  not  necessarily  follow  each  other  in  any  orderly 
sequence. 


OHAP.  I. 


CUSTOMARY  LAW. 


9 


The  literature  of  the  heroic  age  discloses  to  ug 
law  in  the  germ  under  the  "  Themistes  "  and  a  little 
more  developed  in  the  conception  of  "  Dike."  The 
next  stage  which  we  reach  in  the  history  of  juris 
prudence  is  strongly  marked  and  surrounded  by  the 
utmost  interest.  Mr.  Grote,  in  the  second  part  and 
second  chapter  of  his  History,  has  fully  described 
the  mode  in  which  society  gradually  clothed  itself 
with  a  different  character  from  that  delineated  by 
Homer.  Heroic  kingship  depended  partly  on  di- 
vinely given  prerogative,  and  partly  on  the  posses- 
sion of  supereminent  strength,  courage,  and  wisdom, 
Gradually,  as  the  impression  of  the  monarch's  sacred- 
ness  became  weakened,  and  feeble  members  occur- 
red in  the  series  of  hereditary  kings,  the  royal 
power  decayed,  and  at  last  gave  way  to  the  domin- 
ion of  aristocracies  If  language  90  precise  can  be 
used  of  the  revolution,  we  might  say  that  the  office 
of  the  king  was  usurped  by  that  council  of  chiefs 
which  Homer  repeatedly  alludes  to  and  depicts. 
At  all  events  from  an  epoch  of  kingly  rule  we  come 
everywhere  in  Europe  to  an  era  of  oligarchies ;  and 
even  where  the  name  of  the  monarchical  functions 
docs  not  absolutely  disappear,  the  authority  of  the 
king  is  reduced  to  a  mere  shadow.  He  becomes  a 
mere  hereditary  general,  as  in  Lacedamion,  a  mere 
functionary,  as  the  King  Archon  at  Athens,  or  a 
mere  formal  hierophant,  like  the  Rex  Sacriflctilus 
at  Rome.  In  Greece,  Italy,  and  Asia  Minor,  the 
dominant  orders  seem  to  have  universally  consisted 


10 


ANCIENT  CODES. 


CHAP.  U 


ot  a  number  of  families  united  by  an  assumed  rela« 
tionship  in  blood,  and,  though  they  all  appear  at 
first  to  have  laid  claim  to  a  quasi-sacred  character, 
their  strength  does  not  seem  to  have  resided  in 
their  pretended  sanctity.  Unless  they  were  prema- 
turely overthrown  by  the  popular  party,  they  all 
ultimately  approached  very  closely  to  what  we 
should  now  understand  by  a  political  aristocracy. 
The  changes  which  society  underwent  in  the  com- 
munities of  the  farther  Asia  occurred  of  course  at 
periods  long  anterior  in  point  of  time  to  these  revo- 
lutions of  the  Italian  and  Hellenic  worlds;  but  their 
relative  place  in  civilisation  appears  to  have  been 
the  same,  and  they  seem  to  have  been  exceedingly 
similar  in  general  character.  There  is  some  evidence 
that  the  races  which  were  subsequently  united  under 
the  Persian  monarchy,  and  those  which  peopled  the 
peninsula  of  India,  had  all  their  heroic  age  and  their 
era  of  aristocracies ;  but  a  military  and  a  religious 
oligarchy  appear  to  have  grown  up  separately,  nor 
was  the  authority  of  the  king  generally  superseded. 
Contrary,  too,  to  the  course  of  events  in  the  "West, 
the  religious  element  in  the  East  tended  to  get  the 
better  of  the  military  and  political.  Military  and 
civil  aristocracies  disappear,  annihilated  or  crushed 
into  insignificance  between  the  kings  and  the  sacer- 
dotal order;  and  the  ultimate  result  at  which  we 
arrive  is,  a  monarch  enjoying  great  power,  but  cir- 
cumscribed by  the  privileges  of  a  caste  of  priests. 
With  these  differences,  however,  that  in  the  East 


CHAP.  L 


ARISTOCRATIC  PERIOD. 


11 


aristocracies  became  religious,  in  the  West  civil  or 
political,  the  proposition  that  a  historical  era  of  aris* 
tocracies  succeeded  a  historical  era  of  heroic  kings 
may  be  considered  as  true,  if  not  of  all  mankind,  at 
all  events  of  all  branches  of  the  Indo-European 
family  of  nations. 

The  important  point  for  the  jurist  is  that  these 
aristocracies  were  usually  the  depositaries  and  ad- 
ministrators of  law.  They  seem  to  have  succeeded 
to  the  prerogatives  of  the  king,  with  the  important 
difference,  however,  that  they  do  not  appear  to  have 
pretended  to  direct  inspiration  for  each  sentence. 
The  connection  of  ideas  which  caused  the  judgments 
of  the  patriarchal  chieftain  to  be  attributed  to  su- 
perhuman dictation  still  shows  itself  here  and  there 
in  the  claim  of  a  divine  origin  for  the  entire  body 
of  rules,  or  for  certain  parts  of  it,  but  the  progress 
of  thought  no  longer  permits  the  solution  of  partic- 
ular disputes  to  be  explained  by  supposing  an  extra- 
human  interposition.  What  the  juristical  oligarchy 
now  claims  is  to  monopolise  the  knowledge  of  the 
laws,  to  have  the  exclusive  possesion  of  the  prin- 
ciples by  which  quarrels  are  decided.  \Yc  have  in 
1'i  t  arrived  at  the  epoch  of  Customary  Law.  Cus- 
toms or  Observances  now  exist  as  a  substantive 
aggregate,  and  are  assumed  to  be  precisely  known 
to  the  aristocratic  .order  or  caste.  Our  authorities 
leave  us  no  doubt  that  the  trust  lodged  with  the 
oligarchy  was  sometimes  abused,  but  it  certainly 
ought  not  to  be  regarded  as  a  mere  usurpation  or 


12 


ANCIENT  CODES. 


CJIAP.  I. 


engine  of  tyranny.  Before  the  invention  of  writing, 
and  during  tlie  infancy  of  the  art,  an  aristocracy  in- 
vested with  judicial  privileges  formed  the  only  ex 
pedient  by  which  accurate  preservation  of  the  cus- 
toms of  the  race  or  tribe  could  be  at  all  approxi 
mated  to.  Their  genuineness  was,  so  far  as  possible, 
insured  by  confiding  them  to  the  recollection  of  a 
limited  portion  of  the  community. 

The  epoch  of  Customary  Law,  and  of  its  custody 
by  a  privileged  order,  is  a  very  remarkable  one. 
The  condition  of  jurisprudence  which  it  implies  has 
left  traces  which  may  still  be  detected  in  legal  and 
popular  phraseology.  The  law,  thus  known  exclu- 
sively to  a  privileged  minority,  whether  a  caste,  an 
aristocracy,  a  priestly  tribe,  or  a  sacerdotal  college, 
is  true  unwritten  law.  Except  this,  there  is  no  such 
thing  as  unwritten  law  in  the  world.  English  case- 
law  is  sometimes  spoken  of  as  unwritten,  and  there 
are  some  English  theorists  who  assure  us  that  if 
code  of  English  jurisprudence  were  prepared,  we 
should  be  turning  unwritten  law  into  written — a 
conversion,  as  they  insist,  if  not  of  doubtful  policy, 
at  all  events  of  the  greatest  seriousness.  Now,  it  is 
quite  true  that  there  was  once  a  period  at  which  the 
English  common  law  might  reasonably  have  been 
termed  unwritten.  The  elder  English  judges  did 
really  pretend  to  knowledge  of  rules,  principles,  and 
distinctions  which  were  not  entirely  revealed  to  the 
bar  and  to  the  lay-public.  Whether  all  the  law 
which  they  claimed  to  monopolise  was  really  un 


CHAP.  I. 


CUSTOMARY  LAW. 


written  is  exceedingly  questionable ;  but  at  all 
events,  on  the  assumption  that  there  was  once  a 
larore  mass  of  civil  and  criminal  rules  known  exclu- 

O 

sively  to  the  judges,  it  presently  ceased  to  be  unwrit- 
ten law.  As  soon  as  the  Courts  at  Westminster  Hall 
began  to  base  their  judgments  on  cases  recorded, 
whether  in  the  year  books  or  elsewhere,  the  law 
which  they  administered  became  written  law.  At 
the  present  moment  a  rule  of  English  law  has  first 
to  be  disentangled  from  the  recorded  facts  of  ad- 
judged  printed  precedents,  then  thrown  into  a  form 
of  words,  varying  with  the  taste,  precision,  and 
knowledge  of  the  particular  judge,  and  then  applied 
to  the  circumstances  of  the  case  for  adjudication. 
But  at  no  stage  of  this  process  has  it  any  character- 
istic which  distinguishes  it  from  written  law.  It  is 
written  case-law,  and  only  different  from  code-law 
because  it  is  written  in  a  different  way. 

From  the  period  of  Customary  Law  we  come  to 
another  sharply  defined  epoch  in  the  history  of  ju- 
risprudence. We  arrive  at  the  era  of  Codes,  those 
ancient  codes  of  which  the  Twelve  Tables  of  Home 
were  the  most  famous  specimen.  In  Greece,  in  Italy, 
on  the  Hellenised  sea-board  of  Western  Asia,  these 
codes  all  made  their  appearance  at  periods  much  the 
same  everywhere,  not,  I  mean,  at  periods  identical 
in  point  of  time,  but  similar  in  point  of  the  relative 
progress  of  each  community.  Everywhere,  in  the 
countries  I  have  named,  laws  engraven  on  tablets 
and  published  to  the  people  take  the  place  of  osagei 


14 


AXCIEXT  CODES. 


CHAP.  It 


deposited  with  the  recollection  of  a  privileged  oli- 
garchy. It  must  not  for  a  moment  be  supposed  that 
the  refined  considerations  now  urjyed  in  favour  of 
what  is  called  codification  had  any  part  or  place  in 
the  change  I  have  described.  The  ancient  codes 
were  doubtless  originally  suggested  by  the  discovery 
aud  diffusion  of  the  art  of  writing.  It  is  true  that 
the  aristocracies  seem  to  have  abused  their  monopoly 
of  legal  knowledge  ;  and  at  all  events  their  exclusive 
possession  of  the  law  was  a  formidable  impediment  to 
the  success  of  those  popular  movements  which  began 
to  be  universal  in  the  western  world.  But,  though 
democratic  sentiment  may  have  added  to  their  popu- 
larity, the  codes  were  certainly  in  the  main  a  direct 
result  of  the  invention  of  writing.  Inscribed  tablets 
were  seen  to  be  a  better  depositary  of  law,  and  a 
better  security  for  its  accurate  preservation,  than 
the  memory  of  a  number  of  persons  however 
strengthened  by  habitual  exercise. 

The  Roman  code  belongs  to  the  class  of  codes  I 
have  been  describing.  Their  value  did  not  consist 
in  any  approach  to  symmetrical  classifications,  or  to 
terseness  and  clearness  of  expression,  but  in  their 
publicity,  and  in  the  knowledge  which  they  fur- 
nished to* everybody,  as  to  what  lie  was  to  do,  and 
what  not  to  do.  It  is  indeed  true  that  the  Twelve 
Tables  of  Rome  do  exhibit  some  traces  of  systematic 
arrangement,  but  this  is  probably  explained  by  the 
tradition  that  the  framers  of  that  body  of  law  called 
in  the  assistance  of  Greeks  who  enjoyed  the  later 


cn.\p.  r. 


ANCIENT  CODES. 


13 


Greek  experience  in  the  art  of  law-making.  Tbe 
fragments  of  the  Attic  Code  of  Solon  show,  how- 
ever, that  it  had  hut  little  order,  and  probably  the 
laws  of  Draco  had  even  less.  Quite  enough  too 
remains  of  these  collections,  both  in  the  East  and 
in  the  West,  to  show  that  they  mingled  up  religious 
civil,  and  merely  moral  ordinances,  without  any 
regard  to  differences  in  their  essential  character ; 
and  this  is  consistent  with  all  we  know  of  early 
thought  from  other  sources,  the  severance  of  law 
from  morality,  and  of  religion  from  law,  belonging 
very  distinctly  to  the  later  stages  of  mental  progress. 

But,  whatever  to  a  modern  eye  are  the  singu- 
larities of  these  Codes,  their  importance  to  ancient 
societies  was  unspeakable.  The  question — and  it  was 
one  which  affected  the  whole  future  of  each  com- 
munity— was  not  so  much  whether  there  should  be 
a  code  at  all,  for  the  majority  of  ancient  societies 
seem  to  have  obtained  them  sooner  or  later,  and,  but 
for  the  great  interruption  in  the  history  of  jurispru- 
dence created  by  feudalism,  it  is  likely  that  all 
modern  law  would  be  distinctly  traceable  to  one  or 
more  of  those  fountain-heads.  But  the  point  on 
which  turned  the  history  of  the  race  was,  at  what 
period,  at  what  stage  of  their  social  progress,  they 
should  have  their  laws  put  into  writing.  In  the 
western  world  the  plebeian  or  popular  element  in 
each  State  successfully  assailed  the  oligarchical  mo- 
nopoly, and  a  code  was  nearly  universally  obtained 
tarty  in  the  history  of  the  Commonwealth.    But,  i:j 


16 


A5T0TENT  CODES. 


OHA.P.  I 


the  East,  as  I  have  before  mentioned,  the  ruling 
aristocracies  tended  to  become  religious  rather  than 
military  or  political,  and  gained,  therefore,  rather 
than  lost  in  power;  while  in  some  instances  the 
physical  conformation  of  Asiatic  countries  had  the 
effect  of  making  individual  communities  larger  and 
more  numerous  than  in  the  West ;  and  it  is  a  known 
social  law  that  the  larger  the  space  over  which  a 
particular  set  of  institutions  is  diffused,  the  greater 
is  its  tenacity  and  vitality.    From  whatever  cause, 
the  codes  obtained  by  Eastern  societies  were  ob- 
tained, relatively,  much  later  than  by  Western,  and 
wore  a  very  different  character.     The  reli 
oligarchies  of  Asia,  either  for  their  own  guidance,  or 
for  the  relief  of  their  memory,  or  for  the  instruction 
of  their  disciples,  seem  in  all  cases  to  have  ultimately 
embodied  their  legal  learning  in  a  code  ;  but  the 
opportunity  of  increasing  and  consolidating  their 
influence  was  probably  too  tempting  to  be  resisted. 
Their  complete  monopoly  of  legal  knowledge  ap- 
pears to  have  enabled  them  to  put  off  on  the  world 
collections,  not  so  much  of  the  rules  actually  observed 
as  of  the  rules  which  the  priestly  order  considered 
proper  to  be  observed.  The  Hindoo  Code,  called  the 
Laws  of  Menu,  which  is  certainly  a  Brahmin  com- 
pilation, undoubtedly  eushrines  many  genuiue  ob- 
servances  of  the  Hindoo  race,  but  the  opinion  of  the 
best  contemporary  orientalists  is,  that  it  does  not, 
as  a  whole,  represent  a  set  of  rules  ever  actually  ad 
ministered  in  Ilindostan.    It  is,  in  great  part  an 


CHAP.  L 


LAWS  OF  MENU. 


ideal  picture  of  that  which,  in  the  view  of  the 
Brahmins,  ought  to  be  the  law.  It  is  consistent 
with  human  nature  and  with  the  special  motives  of 
their  authors,  that  codes  like  that  of  Menu  should 
pretend  to  the  highest  antiquity  and  claim  to  haVe 
emanated  in  their  complete  form  from  the  Deity. 
Menu,  according  to  Hindoo  mythology,  is  an  ema- 
nation from  the  supreme  God ;  but  the  compila- 
tion which  bears  his  name,  though  its  exact  date 
is  not  easily  discovered,  is,  in  point  of  the  relative 
progress  of  Hindoo  jurisprudence,  a  recent  pro- 
duction. 

Among  the  chief  advantages  which  the  Twelve 
Tables  and  similar  codes  conferred  on  the  societies 
which  obtained  them,  was  the  protection  which  they 
afforded  against  the  frauds  of  the  privileged  oligar- 
chy and  also  against  the  spontaneous  depravation 
and  debasement  of  the  national  institutions.  The 
Roman  Code  was  merely  an  enunciation  in  words  of 
the  existing  customs  of  the  Roman  people.  Rela- 
tively to  the  progress  of  the  Romans  in  civilization, 
it  was  a  remarkably  early  code,  and  it  was  published 
at  a  time  when  Roman  society  had  barely  emerged 
from  that  intellectual  condition  in  which  civil 
obligation  and  religious  duty  are  inevitably  con- 
founded. Xow  a  barbarous  society  practising  a 
body  of  customs,  is. exposed  to  some  especial  dangers 
which  may  be  absolutely  fatal  to  its  progress  in 
civilisation.  The  usages  which  a  particular  commu- 
nity is  found  to  have  adopted  in  its  infancy  and  in 
2 


18 


AXCTF.XT  CODES. 


CHAP.  L 


its  primitive  seats  are  generally  those  which  are  on 
the  whole  best  suited  to  promote  its  physical  and 
moral  well-being;  and,  if  they  are  retained  in  their 
integrity  until  new  social  wants  have  taught  new 
practices,  the  upward  march  of  society  is  almost 
certain.    But  unhappily  there  is  a  law  of  develop- 
ment which  ever  threatens  to  operate  upon  unwrit- 
ten usacre.    The  customs  are  of  course  obeyed  by 
multitudes  who  are  incapable  of  understanding  the 
true  ground  of  their  expediency,  and  who  are  there- 
fore left  inevitably  to  invent  superstitious  reasons 
for  their  permanence.    A  process  then  commences 
which  may  be  shortly  described  by  saying  that 
usage  which  is  reasonable  generates  usage  which  is 
unreasonable.     Analogy,  the  most  valuable  of  in- 
struments in  the  maturity  of  jurisprudence,  is  the 
most  dangerous  of  snares  in  its  infancy.  Prohibi- 
tions and  ordinances,  originally  confined,  for  good 
reasons,  to  a  simple  description  of  acts,  are  made  to 
apply  to  all  acts  of  the  same  class,  because  a  man 
menaced  with  the  anger  of  the  gods  for  doing  one 
thing,  feels  a  natural  terror  in  doing  any  other  thing 
which  is  remotely  like  it,    After  one  kind  of  food 
has  been  interdicted  for  sanitary  reasons,  the  prohi- 
bition is  extended  to  all  food  resembling  it,  though 
the  resemblance  occasionally  depends  on  analogies 
the  most  fanciful.    So,  again,  a  wise  provision  for 
insuring  general  cleanliness  dictates  in  time  Jong 
routines  of  ceremonial  ablution ;  and  that  division 
into  classes  which  at  a  particular  crisis  of  social  his- 


onAr.  i. 


VALUE  01  THE  CODES. 


19 


tory  is  necessary  for  the  maintenance  of  the  nation 
al  existence  degenerates  into  the  most  disastrous  and 
"blighting  of  all  human  institutions — Caste.  The 
fate  of  the  Hindoo  law  is,  in  fact,  the  measure  of  the 
value  of  the  Roman  Code.  Ethnology  shows  us 
that  the  Romans  and  the  Hindoos  sprang  from  the 
same  original  stock,  and  there  is  indeed  a  striking 
resemblance  between  what  appear  to  have  been 
their  original  customs.  Even  now,  Hindoo  juris- 
prudence has  a  substratum  of  forethought  and  sound 
judgment,  but  irrational  imitation  has  engrafted  in 
it  an  immense  apparatus  of  cruel  absurdities.  From 
these  corruptions  the  Romans  were  protected  by 
their  code.  It  was  compiled  while  usage  was  still 
wholesome,  and  a  hundred  years  afterwards  it  might 
have  been  too  late.  The  Hindoo  law  has  been  to  a 
great  extent  embodied  in  writing,  but  ancient  as  in 
one  sense  are  the  compendia  which  still  exist  in 
Sanskrit,  they  contain  ample  evidence  that  they 
were  drawn  up  after  the  mischief  had  been  done. 
AY<;  are  not  of  course  entitled  to  say  that  if  the 
Twelve  Tables  had  not  been  published  the  Romans 
would  have  been  condemned  to  a  civilisation  as 
feeble  and  perverted  as  that  of  the  Hindoos,  but 
thus  much  at  least  is  certain,  that  with  their  code 
they  were  exempt  from  the  very  chance  of  so  un- 
happy a  destiny. 


CHAPTER  IT. 


LEGAL  FICTIONS- 


When  primitive  law  has  once  been  embodied  in  a 
Code,  there  is  an  end  to  what  may  be  called  its  spon- 
taneous development.  Henceforward  the  changes 
effected  in  it,  if  effected  at  all,  are  effected  delibe- 
rately and  from  without.  It  is  impossible  to  sup- 
pose that  the  customs  of  any  race  or  tribe  remained 
unaltered  durmsr  the  whole  of  the  long — in  some 
instances  the  immense — interval  between  their  de- 
claration by  a  patriarchal  monarch  and  their  publi- 
cation in  writing.  It  would  be  unsafe  too  to  affirm 
that  no  part  of  the  alteration  was  effected  deliber- 
ately. But  from  the  little  we  know  of  the  progress 
of  law  during  this  period,  we  are  justified  in  assum- 
ing that  set  purpose  had  the  very  smallest  share 
in  producing  change.  Such  innovations  on  the  ear- 
liest usages  as  disclose  themselves  appear  to  have 
been  dictated  by  feelings  and  modes  of  thought 
which,  under  our  present  mental  conditions,  we  are 
unable  to  comprehend.     A  new  era  begins,  how 


enAP.  n. 


LEGAL  FICTIONS. 


21 


ever,  with  the  Codes.  Wherever,  after  this  epoch, 
we  trace  the  course  of  le^al  modification  we  are  able 
to  attribute  it  to  the  conscious  desire  of  improve- 
ment, or  at  all  events  of  compassing  objects  other 
than  those  which  were  aimed  at  in  the  primitive 
times. 

It  may  seem  at  first  sight  that  no  general  propo- 
sitions worth  trusting  can  be  elicited  from  the  his- 
tory of  legal  systems  subsequent  to  the  codes.  The 
field  is  too  vast.  We  cannot  be  sure  that  we  have 
included  a  sufficient  number  of  phenomena  in  our 
observations,  or  that  we  accurately  understand  those 
which  we  have  observed.  But  the  undertaking  will 
be  seen  to  be  more  feasible,  if  we  consider  that  after 
the  epoch  of  codes  the  distinction  between  station- 
ary and  progressive  societies  begins  to  make  itself 
felt.  It  is  only  with  the  progressive  societies  that 
we  are  concerned,  and  nothing  is  more  remarkable 
than  their  extreme  fewness.  In  spite  of  oveerwhlm- 
ing  evidence,  it  is  most  difficult  for  a  citizen  of 
western  Europe  to  bring  thoroughly  home  to  him- 
self the  truth  that  the  civilisation  which  surrounds 
him  is  a  rare  exception  in  the  history  of  the  world. 
The  tone  of  thought  common  among  us,  all  our 
hopes,  ferns,  and  speculations,  would  be  materially 
affected,  if  we  had  vividly  before  us  the  relation  of 
the  progressive  races-  to  the  totality  of  human  life. 
It  is  indisputable  that  much  the  greatest  part  of 
mankind  has  never  shown  a  particle  of  desire  that 
its  civil  institutions  should  be  improved  since  the 


22 


LEGAL  FICTIONS. 


OHAP.  n 


moment  when  external  completeness  was  first  given 
to  them  by  their  embodiment  in  some  permanent 
record.  One  set  of  usages  has  occasionally  been 
violently  overthrown  and  superseded  by  another; 
here  and  there  a  primitive  code,  pretending  to  a 
supernatural  origin,  has  been  greatly  extended,  and 
distorted  into  the  most  surprising  forms,  by  the  per- 
versity of  sacerdotal  commentators ;  but,  except  in  a 
small  section  of  the  world,  there  has  been  nothing 
like  the  gradual  amelioration  of  a  legal  system. 
There  has  been  material  civilisation,  but,  instead  of 
the  civilisation  expanding  the  law,  the  law  has  limit- 
ed the  civilisation.  The  study  of  races  in  their  primi- 
tive condition  affords  us  some  clue  to  the  point  at 
which  the  development  of  certain  societies  has 
stopped.  We  can  see  that  Brahminical  India  has 
not  passed  beyond  a  stage  which  occurs  in  the  his- 
tory of  all  the  families  of  mankind,  the  stage  at 
which  a  rule  of  law  is  not  yet  discriminated  from  a 
rule  of  religion.  The  members  of  such  a  society 
consider  that  the  transgression  of  a  religious  ordi- 
nance should  be  punished  by  civil  penalties,  and  that 
the  violation  of  a  civil  duty  exposes  the  delinquent 
to  divine  correction.  In  China  this  point  has  been 
past,  but  progress  seems  to  have  been  there  arrest- 
ed, because  the  civil  laws  are  coextensive  with  all 
the  ideas  of  which  the  race  is  capable.  The  differ- 
ence between  the  stationary  and  progressive  socie- 
ties is,  however,  one  of  the  great  secrets  which 
Inquiry  has  yet  to  penetrate.    Among  partial  ex 


chap.  n.  STATIONARY  AXD  PROGRESSIVE  SOCIETIES.  23 


plauations  of  it  I  venture  to  place  the  considerations! 
urged  at  the  end  of  the  last  chapter.  It  may  fur- 
ther be  remarked  that  no  one  is  likely  to  succeed  in 
the  investigation  who  does  not  clearly  realise  that 
the  stationary  condition  of  the  human  race  is  tne 
rule,  the  progressive  the  exception.  And  another 
indispensable  condition  of  success  is  an  accurate 
knowledge  of  Roman  law  in  all  its  principal  stages. 
The  Roman  jurisprudence  has  the  longest  known 
history  of  any  set  of  human  institutions.  The  char- 
acter of  all  the  changes  which  it  underwent  is  tole- 
rably well  ascertained.  From  its  commencement 
to  its  close,  it  was  progressively  modified  for  the 
better,  or  for  what  the  authors  of  the  modification 
conceived  to  be  the  better,  and  the  course  of  im- 
provement was  continued  through  periods  at  which 
all  the  rest  of  human  thought  and  action  materially 
Blackened  its  space,  and  repeatedly  threatened  to 
settle  down  into  stagnation. 

I  confine  myself  in  what  follows  to  the  progres- 
sive societies.  With  respect  to  them  it  maybe  laid 
down  that  social  necessities  and  social  opinion  are 
always  more  or  less  in  advance  of  Law.  AVe  may 
Dome  indefinitely  near  to  the  closing  of  the  gap  be- 
tween them,  but  it  has  a  perpetual  tendency  to  re- 
open. Law  is  stable ;  the  societies  we  are  speiking 
of  arc  progressive.  •  The  greater  or  less  happiness 

of  a  people  depends  on  the  degree  of  promptitude 
with  which  the  gulf  is  narrowed. 

A  general  proposition  of  some  value  may  be  ad- 


24 


LEGAL  FICTIONS. 


crup.  n 


vanced  with  respect  to  the  agencies  by  which  Law 
is  brought  into  harmony  with  society.  These  in 
strumentalities  seem  to  me  to  be  three  in  number, 
Legal  Fictions,  Equity,  and  Legislation.  Their  his 
torical  order  is  that  in  which  I  have  placed  them. 
Sometimes  two  of  them  will  be  seen  operating  to- 
gether, and  there  are  legal  svstems  which  have  es- 
caped  the  influence  of  one  or  other  of  them.  But 
I  know  of  no  instance  in  which  the  order  of  their 
appearance  has  been  changed  or  inverted.  The 
early  history  of  one  of  them,  Equity,  is  universally 
obscure,  and  hence  it' may  be  thought  by  some  that 
certain  isolated  statutes,  reformatory  of  the  civil 
law,  are  older  than  any  equitable  jurisdiction.  My 
own  belief  is  that  remedial  Equity  is  everywhere 
older  than  remedial  Legislation  ;  but,  should  this 
be  not  strictly  true,  it  would  only  be  necessary  to 
limit  the  proposition  respecting  their  order  of  se- 
quence to  the  periods  at  which  they  exercise  a  sus- 
tained and  substantial  influence  in  transforming  the 
original  law. 

I  employ  the  word  "  fiction  "  in  a  sense  consid- 
erably wider  than  that  in  which  English  lawyers  are 
accustomed  to  use  it,  and  with  a  meaning  much  more 
extensive  than  that  which  belonged  to  the  Roman 
<:  fictiones."  Fictio,  in  old  Roman  law,  is  properly  a 
term  of  pleading,  and  signifies  a  false  averment  on 
the  part  of  the  plaintiff  which  the  defendant  wag 
not  allowed  to  traverse ;  such,  for  example,  as  an 
averment  that  the  plaintiff  was  a  Roman  citizen 


chaf.  it.  LEGAL  FICTION'S.  25 

when  in  truth  lie  was  a  foreigner.  The  object  of 
these  "  fictiones  "  was,  of  course,  to  give  jurisdiction, 
and  they  therefore  strongly  resembled  the  allega- 
tions in  the  writs  of  the  English  Queen's  Bench  and 
Exchequer,  by  which  those  Courts  contrived  io 
Usurp  the  jurisdiction  of  the  Common  Pleas: — the 
allegation  that  the  defendant  was  in  custody  of  the 
king's  marshal,  or  that  the  plaintiff  was  the  king's 
debtor,  and  could  not  pay  his  debt  by  reason  of  the 
defendant's  default.  But  I  now  employ  the  expres- 
sion "  Legal  Fiction "  to  signify  any  assumption 
which  conceals,  or  affects  to  conceal,  the  fact  that  a 
rule  of  law  has  undergone  alteration,  its  letter  re- 
maining unchanged,  its  operation  being  modified. 
The  words,  therefore,  include  the  instances  of  fic- 
tions which  I  have  cited  from  the  English  and  Ro- 
man  law,  but  they  embrace  much  more,  for  I  should 
speak  both  of  the  English  Case-law  and  of  the  Ro- 
man Responsa  Prudentum  as  resting  on  fictions. 
Both  these  examples  will  be  examined  presently. 
The  fact  is  in  both  cases  that  the  law  has  been 
wholly  changed;  the  fiction  is  that  it  remains  what 
it  always  was.  It  is  not  difficult  to  understand  why 
fictions  in  all  their  forms  are  particularly  congenial 
to  the  infancy  of  society.  They  satisfy  the  desire 
for  improvement,  which  is  not  quite  wanting,  at  the 
same  time  that  they,  do  not  offend  the  superstitious 
disrelish  for  change  which  is  always  present.  At 
a  particular  stage  of  social  progress  they  are  invalu- 
able expedients  for  overcoming  the  rigidity  of  law  ' 


26  LEGAL  FICTION'S.  chap,  u 

and,  indeed,  without  one  of  them,  the  Fiction  of 
Adoption  which  permits  the  family  tie  to  be  artifi 
cially  created,  it  is  difficult  to  understand  how  soci- 
ety would  ever  have  escaped  froni  its  swaddling 
clothes,  and  taken  its  first  steps  towards  civilisation. 
We  must,  therefore,  not  suffer  ourselves  to  be  af- 
fected by  the  ridicule  which  Benthain  pours  on  le- 
gal fictions  wherever  he  meets  them.  To  revile 
them  as  merely  fraudulent  is  to  betray  ignorance  of 
their  peculiar  office  iu  the  historical  development  of 
law.  But  at  the  same  time  it  would  be  equally 
foolish  to  asn'ee  with  those  theorists  who,  discerning 
that  fictions  have  had  their  uses,  argue  that  they 
ought  to  be  stereotyped  in  our  system.  There  are 
several  Fictions  still  exercising  powerful  influence 
on  English  jurisprudence  which  could  not  be  dis- 
carded without  a  severe  shock  to  the  ideas,  and  con- 
siderable change  in  the  language,  of  English  practi- 
tioners ;  but  there  can  be  no  doubt  of  the  general 
truth  that  it  is  unworthy  of  us  to  effect  an  admit- 
tedly beneficial  object  by  so  rude  a  device  as  a 
legal  fiction.  I  cannot  admit  any  anomaly  to  be  in- 
nocent, which  makes  the  law  either  more  difficult  to 
understand  or  harder  to  arrange  iu  harmonious 
order.  Now,  among  other  disadvantages,  legal  fic- 
tions are  the  greatest  of  obstacles  to  symmetrical 
classification.  The  rule  of  law  remains  sticking  in 
the  system,  but  it  is  a  mere  shell.  It  has  been  long 
ago  undermined,  and  a  new  rule  hides  itself  under 
'  Us  cover.    Hence  there  is  at  once  a  difficulty  in 


CHAP.  n. 


EQUITY. 


27 


knowing  whether  the  rule  which  is  actually  operative 
should  be  classed  in  its  true  or  in  its  apparent  place, 
and  minds  of  different  casts  will  differ  as  to  the 
branch  of  the  alternative  which  ought  to  be  se 
lected.  If  the  English  law  is  ever  to  assume  an  oV 
derly  distribution,  it  will  be  necessary  to  prune 
away  the  legal  fictions  which,  in  spite  of  some 
recent  legislative  improvements,  are  still  abundant 
in  it. 

The  next  instrumentality  by  which  the  adapta- 
tion of  law  to  social  wants  is  carried  on  I  call  Equi- 
ty, meaning  by  that  word  any  body  of  rules  exist- 
ing by  the  side  of  the  original  civil  law,  founded  on 
distinct  principles  and  claiming  incidentally  to  su 
persede  the  civil  law  in  virtue  of  a  superior  sanctity 
inherent  in  those  principles.  The  Equity  whether 
of  the  Roman  Praetors  or  of  the  English  Chancellors, 
differs  from  the  "Fictions  which  in  each  case  preced- 
ed it,  in  that  the  interference  with  law  is  open  and 
avowed.  On  the  other  hand,  it  differs  from  Legis- 
lation, the  agent  of  legal  improvement  which  comes 
after  it,  in  that  its  claim  to  authority  is  grounded, 
not  on  the  prerogative  of  any  external  person  or 
body,  not  even  on  that  of  the  magistrate  who  enun- 
ciates it,  but  on  the  special  nature  of  its  principles, 
to  which  it  is  alleged  that  all  law  ought  to  conform. 
The  very  conception  of  a  set  of  principles,  invested 
with  a  higher  sacredness  than  those  of  the  original 
law  and  demanding  application  independently  of 
the  consent  of  any  external  body,  belongs  to  a  much 


23 


LEGAL  FICTIONS. 


CHAV.  IL 


more  advanced  stage  of  thought  than  that  to  which 
legal  fictions  originally  suggested  themselves. 

Legislation,  the  enactments  of  a  legislature  which, 
whether  it  take  the  form  of  an  autocratic  prince  or 
of  a  parliamentary  assembly,  is  the  assumed  Organ 
of  the  entire  society,  is  the  last  of  the  ameliorating 
instrumentalities.    It  differs  from  Legal  Fictions 
just  as  Equity  differs  from  them,  and  it  is  also  dis- 
tinguished from  Equity,  as  deriving  its  authority 
from  an  external  body  or  person.    Its  obligatory 
force  is  independent  of  its  principles.    The  legisla- 
ture, whatever  be  the  actual  restraints  imposed  on  it 
by  public  opinion,  is  in  theory  empowered  to  im- 
pose what  obligations  it  pleases  on  the  members  of 
the  community.    There  is  nothing  to  prevent  its 
legislating  in  the  wantonness  of  caprice.  Legisla- 
tion may  be  dictated  by  equity,  if  that  last  word  be 
used  to  indicate  some  standard  of  right  and  wrong 
to  which  its  enactments  happen  to  be  adjusted;  but 
then  these  enactments  are  indebted  for  their  binding 
force  to  the  authority  of  the  legislature,  and  not  to 
that  of  the  principles  on  which  the  legislature  acted  ; 
and  thus  they  differ  from  rules  of  Equity,  in  the 
technical  sense  of  the  word,  which  pretend  to  a  para- 
mount  sacredness  entitling  them  at  once  to  the 
recognition  of  the  courts  even  without  the  concur- 
rence of  prince  or  parliamentary  assembly.    It  is 
the  more  necessary  to  note  these  differences  because 
a  student  of  Bentham  would  be  apt  to  confound 
Fictions,  Equity,  and  Statute  law  under  the  single 


1 


ohap.  n.  CASE-LAW.  29 

head  of  legislation.  They  all,  he  would  say,  involve 
law-making;  they  differ  only  in  respect  of  the  ma- 
chinery by  which  the  new  law  is  produced.  That 
is  perfectly  true,  and  we  must  never  forget  it ;  but 
it  furnishes  no  reason  why  we  should  deprive  our 
selves  of  so  convenient  a  term  as  Legislation  in  the 
special  sense.  Legislation  and  Equity  are  disjoined 
in  the  popular  mind  and  in  the  minds  of  most  law- 
yers ;  and  it  will  never  do  to  neglect  the  distinction 
between  them,  however  conventional,  when  impor- 
tant practical  consequences  follow  from  it. 

It  would  be  easy  to  select  from  almost  any  regu- 
larly developed  body  of  rules  examples  of  legal  fic- 
tions, which  at  once  betray  their  true  character  to 
the  modern  observer.  In  the  two  instances  which  I 
proceed  to  consider,  the  nature  of  the  expedient 
employed  is  not  so  readily  detected.  The  first 
authors  of  these  fictions  did  not  perhaps  intend  to 
innovate,  certainly  did  not  wish  to  be  suspected  of 
innovating.  There  are,  moreover,  aud  always  have 
been,  persons  who  refuse  to  see  any  fiction  in  the 
process,  and  conventional  language  bears  out  their 
refusal.  No  examples,  therefore,  can  be  better  cal- 
culated to  illustrate  the  wide  diffusion  of  legal  fic- 
tions, and  the  efficiency  with  which  they  perform 
fchrar  two-fold  office  of  transforming  a  system  of  latra 
and  of  concealing  the  transformation. 

We  in  England  are  well  accustomed  to  the  ex- 
tension, modification,  and  improvement  of  law  by  a 
machinery  which,  in  theory,  is  incapable  of  altering 


30 


LEGAL  FICTIONS.  chap.  n. 


one  jot  or  one  line  of  existing  jurisprudence.  The 
process  by  which  this  virtual  legislation  is  effected 
is  not  so  much  insensible  as  unacknowledged.  With 
respect  to  that  great  portion  of  our  legal  system 
which  is  enshrined  in  cases  and  recorded  in  law  re- 
ports,  we  habitually  employ  a  double  language,  and 
entertain,  as  it  would  appear,  a  double  and  incon- 
sistent  set  of  ideas.    When  a  group  of  facts  come 
before  an  English  Court  for  adjudication,  the  whole 
course  of  the  discussion  between  the  judge  and  the 
advocate  assumes  that  no  question  is,  or  can  be, 
raised  which  will  call  for  the  application  of  any 
principles  but  old  ones,  or  of  any  distinctions  but 
such  as  have  long  since  been  allowed.    It  is  taken 
absolutely  for  granted  that  there  is  somewhere  a 
rule  of  known  law  which  will  cover  the  facts  of  the 
dispute  now  litigated,  and  that,  if  such  a  rule  be 
not  discovered,  it  is  only  that  the  necessary  patience, 
knowledge  or  acumen,  is  not  forthcoming  to  detect 
it.    Yet  the  moment  the  judgment  has  been  ren- 
dered and  reported,  we  slide  unconsciously  or  una- 
vowedly  into  a  new  language  and  a  new  train  of 
thought.   We  now  admit  that  the  new  decision  Jia-s 
modified  the  law.  The  rules  applicable  have,  to  use 
the  very  inaccurate  expression  sometimes  employed, 
become  more  elastic.  In  fact  they  have  been  changed. 
A  clear  addition  has  been  made  to  the  precedents, 
and  the  canon  of  law  elicited  by  comparing  the 
precedents  is  not  the  same  with  that  which  would 
have  been  obtained  if  the  series  of  cases  had  been 


chap.  n. 


CASE-LAW. 


31 


curtailed  by  a  single  example.  The  fact  that  the  old 
rule  has  been  repealed,  and  that  a  new  one  has  re- 
placed it,  eludes  us,  because  we  are  not  in  the  habit 
of  throwing  into  precise  language  the  legal  formulas 
which  we  derive  from  the  precedents,  so  that  a 
change  in  their  tenor  is  not  easily  detected  unless  it 
is  violent  and  glaring.  I  shall  not  now  pause  to 
consider  at  length  the  causes  which  have  led  Em?- 
lish  lawyers  to  acquiesce  in  these  curious  anomalies. 
Probably  it  will  be  found  that  originally  it  was  the 
received  doctrine  that  somewhere,  in  nulibm  or  in 
gremio  magistvatuum,  there  existed  a  complete,  co- 
herent, symmetrical  body  of  English  law,  of  an  am- 
plitude sufficient  to  furnish  principles  which  would 
apply  to  any  conceivable  combination  of  circum- 
stances. The  theory  was  at  first  much  more 
thoroughly  believed  in  than  it  is  now,  and  indeed  it 
may  have  had  a  better  foundation.  The  judges  of 
the  thirteenth  century  ma)'  have  really  had  at  theii 
command  a  mine  of  law  unrevealed  to  the  bar  and 
to  the  lay-public,  for  there  is  some  reason  for  sus- 
pecting that  in  secret  they  borrowed  freely,  though 
not  always  wisely,  from  current  compendia  of  the 
Roman  and  Canon  laws.  But  that  storehouse  was 
eluded  ;is  soon  as  the  points  decided  at  "Westminster 
Hall  became  numerous  enough  to  supply  a  basis  foi 
a  substantive  system  of  jurisprudence;  and  now  for 
centuries  P2nglish  practitioners  have  so  expn — d 
themselves  as  t<>  convey  the  paradoxical  proposition 
that,  except  by  Equity  and  Statute  law,  nothing  ha* 


82 


LEGAL  FICTIONS. 


chap.  n. 


been  added  to  the  basis  siuce  it  was  first  constituted. 
We  do  not  admit  that  our  tribunals  legislate ;  we 
imply  that  they  have  never  legislated  ;  and  yet  we 
maintain  that  the  rules  of  the  English  common  law, 
with  some  assistance  from  the  Court  of  Chancery 
and  from  Parliament,  are  coextensive  with  the  com- 
plicated interests  of  modern  society. 

A  body  of  law  bearing  a  very  close  and  very  in- 
structive resemblance  to  our  case-law  in  those  par- 
ticulars which  I  have  noticed,  was  known  to  the 
Romans  under  the  name  of  the  Eesponsa  Pruden- 
turn,  the  "  answers  of  the  learned  in  the  law."  The 
form  of  these  Responses  varied  a  good  deal  at  dif- 
ferent periods  of  the  Roman  jurisprudence,  but 
throughout  its  whole  course  they  consisted  of  ex- 
planatory glosses  on  authoritative  written  docu- 
ments, and  at  first  they  were  exclusively  collections 
of  opinions  interpretative  of  the  Twelve  Tables.  As 
with  us,  all  legal  language  adjusted  itself  to  the  as- 
sumption that  the  text  of  the  old  Code  remained 
unchanged.    There  was  the  express  rule.    It  over- 
rode all  glosses  and  comments,  and  no  one  openly 
admitted  that  any  interpretation  of  it,  however  emi- 
nent the  interpreter,  was  safe  from  revision  on  ap- 
peal to  the  venerable  texts.    Yet  in  point  of  fact, 
Books  of  Responses  bearing  the  names  of  leading 
jurisconsults  obtained  an  authority  at  least  equal  to 
that  of  our  reported  cases,  and  constantly  modified, 
extended,  limited  or  practically  overruled  the  pro- 
visions of  the  Decemviral  law.    The  authors  of  the 


CHAP.  II. 


ANSWERS  OF  THE  LEARNED. 


33 


new  jurisprudence  during  the  whole  progress  of  its 
formation  professed  the  most  sedulous  respect  for 
the  letter  of  the  Code.  They  were  merely  explaiu- 
iug  it,  deciphering  it,  bringing  out  its  full  meaning; 
but  then,  in  the  result,  by  piecing  texts  together,  by 
adjusting  the  law  to  states  of  fact  which  actually  pre- 
sented themselves  and  by  speculating  on  its  possible 
application  to  others  which  might  occur,  by  intro^ 
ducing  principles  of  interpretation  derived  from  the 
exegesis  of  other  written  documents  which  fell 
under  their  observation,  they  educed  a  vast  variety 
of  canons  which  had  never  been  dreamed  of  by  the 
compilers  of  the  Twelve  Tables  and  which  were  in 
truth  rarely  or  never  to  be  found  there.  All  these 
treatises  of  the  jurisconsults  claimed  respect  on  the 
ground  of  their  assumed  conformity  with  the  Code, 
but  their  comparative  authority  depended  on  the 
reputation  of  the  particular  jurisconsults  who  gave 
them  to  the  world.  Any  name  of  universally  ac- 
knowledged greatness  clothed  a  Rook  of  Responses 
with  a  binding  force  hardly  less  than  that  which 
belonged  to  enactments  of  the  legislature;  and  such 
a  book  in  its  turn  constituted  a  new  foundation  on 
which  a  further  body  of  jurisprudence  might  rest. 
The  Responses  of  the  early  lawyers  were  not  how- 
ever published,  in  the  modern  sense,  by  their  au- 
thor. They  were  recorded  and  edited  by  his  pupils, 
and  were  not  therefore  in  all  probability  arranged 
iiceording  In  any  scheme  of  classilicat ion.  The  part 
of  the  students  in  these  publications  must  be  care- 
8 


34 


LEGAL  FICTIONS. 


chap,  n,  , 


fully  noted,  because  the  service  they  rendered  to 
their  teacher  seems  to  have  been  generally  repaid 
by  his  sedulous  attention  to  the  pupils'  education. 
The  educational  treatises  called  Institutes  or  Com 
Ijnentaries,  which  are  a  later  fruit  of  the  duty  then 
recognised,  are  among  the  most  remarkable  features, 
of  the  Roman  system.  It  "was  apparently  iu  these 
Institutional  works,  and  not  in  the  books  intended 
for  trained  lawyers,  that  the  jurisconsults  gave  to 
the  public  their  classifications  and  their  proposals 
for  modifying  and  improving  the  technical  phraseo- 

Iu  comparing  the  Roman  Responsa  Prudentum 
with  their  nearest  Euglish  counterpart,  it  must  be 
carefully  borne  in  mind  that  the  authority  by  which 
this  part  of  the  Roman  jurisprudence  was  expounded 
was  not  the  bench,  but  the  bar.  The  decision  of  a 
Roman  tribunal,  though  conclusive  in  the  particular 
case,  had  no  ulterior  authority  except  such  as  was 
giren  by  the  professional  repute  of  the  magistrate 
who  happened  to  be  in  office  for  the  time.  Pro- 
perly speaking,  there  was  no  institution  at  Rome 
during  the  republic  analogous  to  the  English  Bench, 
the  Chambers  of  Imperial  Germany,  or  the  Parlia- 
ments of  Monarchical  France.  There  were  magis- 
trates indeed,  invested  with  momentous  judicial 
functions  in  their  several  departments,  but  the  ten 
ure  of  the  magistracies  was  but  for  a  single  year,  so 
that  they  are  much  less  aptly  compared  to  a  perma- 
nent judicature  than  to  a  cycle  of  offices  briskly  cir« 


ANSWERS  OF  TIIE  LEARNED. 


33 


culatiner  among  the  leaders  of  the  bar.  Much  might 
be  said  on  the  origin  of  a  condition  of  things  which 
looks  to  us  like  a  startling  anomalv,  but  which  was 
in  fact  much  more  congenial  than  our  own  system 
to  the  spirit  of  ancient  societies,  tending,  as  they 
always  did,  to  split  into  distinct  orders  which,  how- 
ever exclusive  themselves,  tolerated  no  professional 
hierarchy  above  them. 

It  is  remarkable  that  this  system  did  not  pro- 
duce certain  effects  which  might  on  the  whole  have 
been  expected  from  it.  It  did  not,  for  example, 
■popularise  the  Roman  law, — it  did  not,  as  in  some 
of  the  Greek  republics,  lessen  the  effort  of  intellect 
required  for  the  mastery  of  the  science,  although  its 
diffusion  and  authoritative  exposition  were  opposed 
by  no  artificial  barriers.  On  the  contrary,  if  it  had 
not  been  for  the  operation  of  a  separate  set  of 
causes,  there  were  strong  probabilities  that  the  Ro- 
man jurisprudence  would  have  become  as  minute, 
technical,  and  difficult  as  any  system  which  has  since 
prevailed.  Again,  a  consequence  which  might  still 
more  naturally  have  been  looked  for,  does  not  ap- 
pear at  any  time  to  have  exhibited  itself.  The  juris- 
consults, until  the  liberties  of  Rome  were  over- 
thrown, formed  a  class  which  was  quite  undefined 
and  most  have  fluctuated  greatly  in  numbers;  never- 
theless, there  does  not  seem  to  have  existed  a  doubt 
as  to  the  particular  individuals  whose  opinion,  in 
their  generation,  was  conclusive  on  the  cases  sub- 
mitted to  them.    The  vivid  pictures  of  a  leading 


06 


LEGAL  FICTIONS. 


CHAP,  n 


jurisconsult's  daily  practice  which  abound  in  Latin 
literature — the  clients  from  the  country  flocking  to 
his  antechamber  in  the  early  morning,  and  the  stu 
dents  standing  round  with  their  note-books  to  re« 
cord  the  great  lawyers  replies — are  seldom  or  never 
identified  at  any  given  period  with  more  than  one 
or  two  conspicuous  names.  Owing  too  to  the  di- 
rect contact  of  the  client  and  the  advocate,  the  Ro- 
man people  itself  seems  to  have  been  always  alive 
to  the  rise  and  fall  of  professional  reputation,  and 
there  is  abundance  of  proof,  more  particularly  in 
the  well-known  oration  of  Cicero,  "  Pro  Murama," 
that  the  reverence  of  the  commons  for  forensic  suc- 
cess was  apt  to  be  excessive  rather  than  deficient. 

We  cannot  doubt  that  the  peculiarities  which 
have  been  noticed  in  the  instrumentality  by  which 
the  development  of  the  Roman  law  was  first  effect- 
ed, were  the  source  of  its  characteristic  excellence, 
'ts  early  wealth  in  principles.  The  growth  and  exu- 
berance of  principle  was  fostered,  in  part,  by  the 
competition  among  the  expositors  of  the  law,  an 
influence  wholly  unknown  where  there  exists  a 
Bench,  the  depositaries  instrusted  by  king  or  com- 
monwealth with  the  prerogative  of  justice.  But 
the  chief  agency,  no  doubt,  was  the  uncontrolled 
multiplication  of  eases  for  legal  decision.  The  state 
of  facts  which  caused  genuine  perplexity  to  a  coun- 
try client  was  not  a  whit  more  entitled  to  form  the 
basis  of  the  jurisconsult's  Response,  or  legal  deci- 
sion, than  a  set  of  hypothetical  circumstances  pro- 


CHAP.  II. 


ANSWERS  OF  THE  LEARNED. 


37 


pounded  by  an  ingenious  pupil.  All  combinations 
of  fact  were  on  precisely  the  same  footing,  whether 
they  were  real  or  imaginary.  It  was  nothing  to  the 
jurisconsult  that  his  opinion  was  overruled  for  the^ 
moment  by  the  magistrate  who  adjudicated  on  his 
client's  case,  unless  that  magistrate  happened  to  rank 
above  him  in  legal  knowledge  or  the  esteem  of  his 
profession.  I  do  not,  indeed,  mean  it  to  be  inferred 
that  he  would  wholly  omit  to  consider  his  client's 
advantage,  for  the  client  was  in  earlier  times  the 
great  lawyer's  constituent  and  at  a  later  period  his 
paymaster,  but  the  main  road  to  the  rewards  of 
ambition  lay  through  the  good  opinion  of  his  order, 
and  it  is  obvious  that  under  such  a  system  as  I  have 
been  describing  this  was  much  more  likely  to  be 
secured  by  viewing  each  case  as  an  illustration  of  a 
great  principle,  or  an  exemplification  of  a  broad 
rule,  than  by  merely  shaping  it  for  an  insulated 
forensic  triumph.  It  is  evident  that  powerful  influ- 
ence must  have  been  exercised  by  the  want  of  any 
distinct  check  on  the  suggestion  or  invention  of  pos- 
sible questions.  Where  the  data  can  be  multiplied 
at  pleasure,  the  facilities  for  evolving  a  general  rule 
are  immensely  increased.  As  the  law  is  adminis- 
tered among  ourselves,  the  judge  cannot  travel  out 
of  the  -i  ts  of  facts  exhibited  before  him  or  before  his 
predecessors.  Accordingly  eacli  group  of  circum- 
stances which  is  adjudicated  upon  receives,  to  em- 
ploy a  (lallicism,  a  sort  of  consecration.  It  acquires 
certain  qualities  which  distinguish  it  from  every 


88 


LEGAL  FIC'IIOXS. 


CHAP.  II 


other  case  genuine  or  hypothetical.  But  at  Rome 
as  I  have  attempted  to  explain,  there  was  nothing 
resembling  a  Bench  or  Chamber  of  judges;  and 
therefore  no  combination  of  facts  possessed  any  par 
ticular  value  more  than  another.  When  a  difficulty 
came  for  opinion  before  the  jurisconsult,  there  was 
nothing  to  prevent  a  person  endoAved  with  a  nice 
perception  of  analogy  from  at  once  proceeding  to 
adduce  and  consider  an  entire  class  of  supposed 
questions  with  which  a  particular  feature  connected 
it.  "Whatever  were  the  practical  advice  given  to 
the  client,  the  re-sponsum  treasured  up  in  the  note- 
books of  listening  pupils  would  doubtless  contem- 
plate the  circumstances  as  governed  by  a  great 
principle,  or  included  in  a  sweeping  rule.  Nothing 
like  this  has  ever  been  possible  among  ourselves, 
and  it  should  be  acknowledged  that  in  many  criti- 
cisms passed  on  the  English  law  the  manner  in  which 
it  has  been  enunciated  seems  to  have  been  lost  sight 
of.  The  hesitation  of  our  courts  in  declaring  prin- 
ciples may  be  much  more  reasonably  attributed  to 
the  comparative  scantiness  of  our  precedents,  vo- 
luminous as  they  appear  to  him  who  is  acquainted 
with  no  other  system,  than  to  the  temper  of  our 
judges.  It  is  true  that  in  the  wealth  of  legal  princi- 
ple we  are  considerably  poorer  than  several  modern 
European  nations.    But  they,  it  must  be  remeni- 

bered,  took  (he  R  an  jurisprudence  for  the  foun 

dation  of  their  civil  institutions.  They  built  the 
dehiis  of  the  Roman  law  into  their  walls ;  but  in 


cnAP.  ii. 


LATER  JURISCONSULTS. 


39 


the  materials  and  workmanship  of  the  residue  there 
is  not  much  which  distinguishes  it  favourably  from 
the  structure  erected  by  the  English  judicature. 

The  period  of  Roman  freedom  was  the  perioc^ 
during  which  the  stamp  of  a  distinctive  character 
was  impressed  on  the  Roman  jurisprudence ;  and 
through  all  the  earlier  part  of  It,  it  was  by  the  Re- 
sponses of  the  jurisconsults  that  the  development  of 
the  law  was  mainly  carried  on.  But  as  we  approach 
the  fall  of  the  republic  there  are  signs  that  the  Re- 
sponses are  assuming  a  form  which  must  have  been 
fatal  to  their  farther  expansion.  They  are  becom- 
ing systematised  and  reduced  into  compendia.  Q. 
Mucins  Scaevola,  the  Pontifex,  is  said  to  have  pub- 
lished a  manual  of  the  entire  Civil  Law,  and  there 
are  traces  in  the  writings  of  Cicero  of  growing  dis- 
relish  for  the  old  methods,  as  compared  with  the 
more  active  instruments  of  le^al  innovation.  Other 
agencies  had  in  fact  by  this  time  been  brought  to 
bear  on  the  law.  The  Edict,  or  annual  proclama- 
tion of  the  Praetor,  had  risen  into  credit  as  the 
principal  engine  of  law  reform,  and  L.  Cornelius 
Sylla,  by  causing  to  be  enacted  the  great  group  of 
statutes  called  the  Leges  Cornelia?,  had  shown  what 
rapid  and  speedy  improvements  can  be  effected  by 
direct  legislation.  The  final  blow  to  the  Responses 
was  dealt  by  Augustus,  who  limited  to  a  few  lead- 
ing jurisconsults  the  right  of  giving  binding  opin- 
ions on  cases  submitted  to  them,  a  change  which, 
though  it  brings  us  nearer  the  ideas  of  the  modern 


40 


LEGAL  FICTIONS. 


CTTaP.  tT 


world,  must  obviously  have  altered  fundamentally 
the  characteristics  of  the  legal  profession  and  the 
nature  of  its  influence  on  Roman  law.  At  a  later 
period  another  school  of  jurisconsults  arose,  the 
great  lights  of  jurisprudence  for  all  time.  But 
Ulpian  and  Paulus,  Gains  and  Papinian,  were  not 
authors  of  Responses.  Their  works  were  regular 
treatises  on  particular  departments  of  the  law,  more 
especially  on  the  Praetors  Edict. 

The  Equity  of  the  Romans  and  the  Praetorian 
Edict  l>y  which  it  was  worked  into  their  system,  will 
be  considered  in  the  next  chapter.  Of  the  Statute 
Law  it  is  only  necessary  to  say  that  it  was  scanty 
during  the  republic,  l.ut  became  very  voluminous 
under  the  empire.  In  the  youth  and  infancy  of  a 
nation  it  is  a  rare  thing  for  the  legislature  to  be 
called  into  action  for  the  general  reform  of  private, 
law.  The  cry  of  the  people  is  not  for  change  in 
the  laws,  which  are  usually  valued  above  their  real 
worth,  but  solely  for  their  pure,  complete  and  easy 
administration  ;  and  recourse  to  the  legislative  body 
is  generally  directed  to  the  removal  of  some  great 
abuse,  or  the  decision  of  some  incurable  quarrel  be« 
tween  classes  or  dynasties.  There  seems  in  the  minds 
of  the  Romans  to  have  been  some  association  be- 
tween the  enactment  of  a  large  body  of  statutes  and 
the  settlement  of  society  after  a  great  civil  commo- 
tion. Sylla  signalised  his  reconstitution  of  the  repub- 
lic by  the  Leges  Cornelia?;  Julius  Csesar  contemplat- 
ed vast  additions  to  the  Statute  Law ;  Augustus  caused 


chap.  n. 


ROMAN  STATUTE?. 


41 


to  be  passed  the  all  important  group  of  Leges  Julife 
and  among  later  emperors  the  most  active  promul 
gators  of  constitutions  are  princes  who,  like  Con 
stantine,  have  the  concerns  of  the  world  to  readjust. 
The  true  period  of  Roman  Statute  Law  does  not 
begin  till  the  establishment  of  the  empire.  The 
enactments  of  the  emperors,  clothed  at  first  in  the 
pretence  of  popular  sanctiou,  but  afterwards  ema- 
nating undisguisedly  from  the  imperial  prerogative, 
extend  in  increasing  massiveness  from  the  consolida- 
tion  of  Augustus's  power  to  the  publication  of  the 
Code  of  Justinian.  It  will  be  seen  that  even  in  the 
reign  of  the  second  emperor  a  considerable  approxi- 
mation is  made  to  that  condition  of  the  law  and 
that  mode  of  administering  it  with  which  we  are  all 
familiar.  A  statute  law  and  a  limited  board  of  ex- 
positors have  arisen  into  being;  a  permanent  court 
of  appeal  and  a  collection  of  approved  commenta- 
ries will  very  shortly  be  added  ;  and  thus  we  are 
brought  close  on  the  ideas  of  our  own  day. 


CHAPTER  in. 


LAW    OF   NATURE   AND  EQUITY. 


The  theory  of  a  set  of  legal  principles  entitled  by 
their  intrinsic  superiority  to  supersede  the  older 
law,  very  early  obtained  currency  both  in  the  Ro- 
man State  and  in  England.  Such  a  body  of  prin- 
ciples, existing  in  any  system,  has  in  the  foregoing 
chapters  been  denominated  Equity,  a  term  which,  as 
will  presently  be  seen,  was  one  (though  only  one)  of 
the  designations  by  which  this  agent  of  legal  change 
was  known  to  the  Roman  jurisconsults.  The  juris* 
prudence  of  the  Court  of  Chancery,  which  bears  the 
'  name  of  Equity  in  England,  could  only  be  adequate- 
ly discussed*  in  a  separate  treatise.  It  is  extremely 
complex  in  its  texture,  and  derives  its  materials 
from  several  heterogeneous  sources.  The  early  ec- 
clesiastical chancellors  contributed  to  it,  from  the 
Canon  Law,  many  of  the  principles  which  lie  deep- 
est in  its  structure.  The  Roman  Law,  more  fertile 
than  the  Canon  Law  in  rules  applicable  to  secular 
disputes,  was  not  seldom  resorted  toby  a  later  gene 


chap.  in. 


EQUITY. 


4:J 


ration  of  Chancery  judges,  amid  whose  recorded  dicta 

we  often  find  entire  texts  from  the  Corpus  Juris 

CivilU-  imbedded,  with  their  terms  unaltered,  though 

their  origin1  is  never  acknowledged.    Still  more  re- 
.  .  .  > 

ccntly,  and  particularly  at  the  middle  and  during 

the  latter  half  of  the  eighteenth  century,  the  mixed 
systems  of  jurisprudence  and  morals  constructed  by 
the  publicists  of  the  Low  Countries  appear  to  have 
been  much  studied  by  English  lawyers,  and  from  the 
chancellorship  of  Lord  Talbot  to  the  commencement 
of  Lord  Eldon's  chancellorship  these  works  had 
considerable  effect  on  the  rulings  of  the  Court  of 
Chancery.  The  system,  which  obtained  its  ingre- 
dients from  these  various  quarters,  was  greatly  con- 
trolled in  its  growth  by  the  necessity  imposed  on  it 
of  conforming  itself  to  the  analogies  of  the  common 
law,  but  it  has  always  answered  the  description  of  a 
body  of  comparatively  novel  legal  principles  claim- 
ing to  override  the  older  jurisprudence  of  the  coun- 
try on  the  strength  of  an  intrinsic  ethical  supe- 
riority. 

The  Equity  of  Home  was  a  much  simpler  struoV 
tare,  and  its  development  from  its  first  appearance 
can  be  much  more  easily  traced.  Both  its  character 
and  its  history  deserve  attentive  examination.  It  is 
the  root  of  several  conceptions  which  have  exercised 
profound  influence  on  human  thought,  and  through 
human  thought  have  seriously  affected  the  destinies 
uf  mankind. 

The  Romans  described  their  legal  system  as  con- 


44         LAW  OF  NATIONS  AND  OF  NATURE.      chap,  in 


sisting  of  two  ingredients.  "  All  nations,'' says  the 
Institutional  Treatise  published  under  the  authority 
of  the  Emperor  Justinian,  "  who  are  ruled  by  laws 
and  customs,  are  governed  partly  by  their  own  par- 
ticular laws,  and  partly  by  those  laws  which  are 
common  to  all  mankind.  The  law  which  a  people 
enacts  is  called  the  Civil  Law  of  that  people,  but 
that  which  natural  reason  appoints  for  all  mankind 
is  called  the  Law  of  Nations,  because  all  nations  u*e 
it."  The  part  of  the  law  "  which  natural  reason  ap- 
points for  all  mankind"  was  the  element  which  the 
Edict  of  the  Praetor  was  supposed  to  have  worked 
into  Roman  jurisprudence.  Elsewhere  it  is  styled 
more  simply  Jus  Naturale,  or  the  Law  of  Nature ; 
and  its  ordinances  are  said  to  be  directed  by  Natural 
Equity  (riaturalis  cequitas)  as  well  as  by  natural 
reason.  I  shall  attempt  to  discover  the  origin  of 
these  famous  phrases,  Law  of  Nations,  Law  of  Na- 
ture, Equity,  and  to  determine  how  the  conceptions 
which  they  indicate  are  related  to  one  another. 

The  most  superficial  student  of  Roman  history 
must  be  struck  by  the  extraordinary  degree  in  which 
the  fortunes  of  the  republic  were  affected  by  the 
presence  of  foreigners,  under  different  names,  on  her 
soil.  The  causes  of  this  immigration  are  discernible 
enough  at  a  later  period,  for  we  can  readily  under- 
stand why  men  of  all  races  should  flock  to  the  mis 
tress  of  the  world  ;  but  the  same  phenomenon  of  a 
large  population  of  foreigners  and  denizens  meets  us 
in  the  very  earliest  records  of  the  Roman  State.  No 


chap.  in.   LAW  OF  NATIONS  AND  OF  NATURE.  45 


doubt,  the  instability  of  society  in  ancient  Italy, 
composed  as  it  was  in  great  measure  of  robber 
tribes,  gave  men  considerable  inducement  to  locate 
themselves  in  the  territory  of  any  community  strong 
enough  to  protect  itself  and  them  from  externa 
attack,  even  though  protection  should  be  purchased 
at  the  cost  of  heavy  taxation,  political  disfranchise- 
ment, and  much  social  humiliation.  It  is  probable, 
however,  that  this  explanation  is  imperfect,  and  that 
it  could  only  be  completed  by  taking  into  account 
those  active  commercial  relations  which,  though  they 
are  little  reflected  in  the  military  traditions  of  the 
republic,  Rome  appears  certainly  to  have  had  with 
Carthage  and  with  the  interior  of  Italy  in  pre-historic 
times.  Whatever  were  the  circumstances  to  which 
it  was  attributable,  the  foreign  element  in  the  com- 
monwealth determined  the  whole  course  of  its  his- 
tory, which,  at  all  its  stages,  is  little  more  than  a 
narrative  of  conflicts  between  a  stubborn  nationality 
and  an  alien  population.  Nothing  like  this  has  been 
Been  in  modern  times ;  on  the  one  hand,  because 
modern  European  communities  have  seldom  or  never 
received  any  accession  of  foreign  immigrants  which 
was  large  enough  to  make  itself  felt  by  the  bulk  of 
the  native  citizens,  and  on  the  other,  because  mod- 
ern states,  being  held  toge  ther  by  allegiance  to  a 
king  or  political  superior,  absorb  considerable  bodies 
of  immigrant  settlers  with  a  quickness  unknown  to 
the  ancient  world,  where  the  original  citizens  of  a 
commonwealth  always  believed  themselves  to  be 


LAW  OF  NATIONS. 


chap.  ni. 


united  by  kinship  in  blood,  and  resented  a  claim  to 
equality  of  privilege  as  a  usurpation  of  their  birth- 
right. In  the  early  Roman  republic  the  principle 
of  the  absolute  exclusion  of  foreigners  pervaded  the 
Civil  Law  no  less  than  the  constitution.  The  alien 
or  denizen  could  have  no  share  in  any  institution 
supposed  to  be  coeval  with  the  State.  He  could  not 
have  the  benefit  of  Quiritarian  law.  He  could  not 
be  a  party  to  the  nexum  which  was  at  once  the 
conveyance  and  the  contract  of  the  primitive  Ro- 
mans. He  could  not  sue  by  the  Sacramental  Ac- 
tion, a  mode  of  litigation  of  which  the  origin  mounts 
up  to  the  very  infancy  of  civilisation.  Still,  neither 
the  interest  nor  the  security  of  Rome  permitted 
him  to  be  quite  outlawed.  All  ancient  communi- 
ties ran  the  risk  of  being  overthrown  by  a  very 
slight  disturbance  of  equilibrium,  and  the  mere  in- 
stinct of  self-preservation  would  force  the  Romaus 
to  devise  some  method  of  adjusting  the  rights  and 
duties  of  foreigners,  who  miffht  otherwise — -and  this 
was  a  danger  of  real  importance  in  the  ancient 
world — have  decided  their  controversies  by  armed 
strife.  Moreover,  at  no  period  of  Roman  history 
was  foreign  trade  entirely  neglected.  It  was  there* 
fore  probably  half  as  a  measure  of  police  and  half 
in  furtherance  of  commerce  that  jurisdiction  was  first 
assumed  in  disputes  to  which  the  parties  were  either 
foreigners  or  a  native  and  a  foreigner.  The  assump- 
tiou  of  such  a  jurisdiction  brought  with  it  the  iin« 
mediate  necessity  of  discovering  some  principles  on 


cnAP.  m. 


LAW  OF  NATIONS. 


which  toe  questions  to  be  adjudicated  upon  could 
be  settled,  and  the  principles  applied  to  this  ob- 
ject by  the  Roman  lawyers  were  eminently  char- 
acteristic of  the  time.  They  refused,  as  I  have  sa^d 
before,  to  decide  the  new  cases  by  pure  Roman 
Civil  Law.  They  refused,  no  doubt  because  it 
seemed  to  involve  some  kind  of  degradation,  to  ap- 
ply the  law  of  the  particular  State  from  which  the 
foreign  litigant  came.  The  expedient  to  which  they 
resorted  was  that  of  selecting  the  rules  of  law  com- 
mon to  Rome  and  to  the  different  Italian  communi- 
ties in  which  the  immigrants  were  born.  In  other 
words,  they  set  themselves  to  form  a  system  an- 
swering to  the  primitive  and  literal  meaning  of  Jus 
Gentium,  that  is,  Law  common  to  all  Nations.  Jus 
Gentium  was,  in  fact,  the  sum  of  the  common  ingre- 
dients in  the  customs  of  the  old  Italian  tribes,  for 
they  were  all  the  nations  whom  the  Romans  had 
the  means  of  observing,  and  who  sent  successive 
swarms  of  immigrants  to  Roman  soil.  Whenever  ;i 
particular  usage  was  seen  to  be  practised  by  a  large 
number  of  separate  races  in  common  it  was  set 
dow  n  as  part  of  the  Law  common  to  all  Nations,  or 
Jus  Gentium.  Thus,  although  the  conveyance  of 
property  w  as  certainly  accompanied  by  very  differ- 
ent forms  in  the  different  commonwealths  surround- 
ing Rome,  the  actual  transfer,  tradition,  or  delivery 
of  the  article  intended  to  be  conveyed  was  a  part 
of  the  ceremonial  in  all  of  them.  It  was,  for  in- 
stance, a  part,  though  a  subordinate  part,  in  the 


LAW  OF  nations: 


ciiap.  iir 


Mancipation  or  conveyance  peculiar  to  Rome.  Tra- 
dition, therefore,  "being  in  all  probability  the  only 
common  ingredient  in  the  modes  of  conveyance 
which  the  jurisconsults  had  the  means  of  observing 
was  set  down  as  an  institution  Juris  Gentium,  or 
rule  of  the  Law  common  to  all  Nations.  A  vast 
number  of  other  observances  were  scrutinised  with 
the  same  result.  Some  common  characteristic  was 
discovered  in  all  of  them,  which  had  a  common 
object,  and  this  characteristic  was  classed  in  the 
Jus  Gentium.  The  Jus  Gentium  was  accordingly 
a  collection  of  rules  and  principles,  determined  by 
observation  to  be  common  to  the  institutions  which 
prevailed  among  the  various  Italian  tribes. 

The  circumstances  of  the  origin  of  the  Jus  Gen- 
tium are  probably  a  sufficient  safeguard  against  the 
mistake  of  supposing  that  the  Roman  lawyers  had 
any  special  respect  for  it.  It  was  the  fruit  in  part 
of  their  disdain  for  all  foreign  law,  and  in  part  of 
their  disinclination  to  give  the  foreigner  the  advan- 
tage of  their  own  indigenous  Jus  Civile.  It  is  true 
that  we,  at  the  present  day,  should  probably  take  a 
very  different  view  of  the  Jus  Gentium,  if  we  were 
performing  the  operation  which  was  effected  by  the 
Roman  jurisconsults.  We  should  attach  some  vague 
superiority  or  precedence  to  the  element  which  we 
had  thus  discerned  underlying  and  pervading  so 
great  a  variety  of  usage.  We  should  have  a  sort  of 
respect  for  rules  and  principles  so  universal.  Per- 
haps we  should  speak  of  the  common  ingredient  as 


en  a  p.  in. 


LAW  OF  NATIONS. 


49 


being  of  the  essence  of  tlie  transaction  into  which  it 
entered,  and  should  stigmatise  the  remaining  appa- 
ratus of  ceremony,  which  varied  in  different  commu- 
nities, as  adventitious  and  accidental.  Or  it  maj 
be,  we  should  infer  that  the  races  which  we  were 
comparing  at  once  obeyed  a  great  system  of  com- 
mon institutions  of  which  the  Jus  Gentium  was  the 
reproduction,  and  that  the  complicated  usages  of 
separate  commonwealths  were  only  corruptions  and 
depravations  of  the  simpler  ordinances  which  had 
once  regulated  their  primitive  state.  But  the  results 
to  which  modern  ideas  conduct  the  observer  are,  as 
nearly  as  possible,  the  reverse  of  those  which  were 
instinctively  brought  home  to  the  primitive  Roman. 
What  we  respect  or  admire,  he  disliked  or  regarded 
with  jealous  dread.  The  parts  of  jurisprudence 
which  he  looked  upon  with  affection  were  exactly 
those  which  a  modern  theorist  leaves  out  of  consid- 
eration as  accidental  and  transitory;  the  solemn 
gestures  of  the  mancipation  ;  the  nicely  adjusted 
questions  and  answers  of  the  verbal  contract;  the 
!'ndless  formalities  of  pleading  and  procedure.  The 
Jus  Gentium  was  merely  a  system  forced  on  his  at- 
tention bya  political  necessity.  lie  loved  it  as  little 
as  he  loved  the  foreigners  from  whose  institutions  it 
was  derived  and  for  whose  benefit  it  was  intended. 
A  complete  revolution  in  his  ideas  was  required  be- 
fore it  could  challenge  his  respect,  but  so  complete 
was  it  when  it  did  occur,  that  the  true  reason  why 
our  modern  estimate  of  the  Jus  Gentium  differs  from 
3 


50 


LAW  OF  NATURE. 


chap,  ra 


that  which  lias  just  been  described,  is  that  both 
modern  jurisprudence  and  modern  philosophy  have 
inherited  the  matured  views  of  the  later  juriscon- 
sults on  this  subject.  There  did  come  a  time  when, 
from  an  ignoble  appendage  of  the  Jus  Civile,  th 
Jus  Gentium  came  to  be  considered  a  srreat  though 
as  yet  imperfectly  developed  model  to  which  all  law 
ought  as  far  as  possible  to  conform.  This  crisis  ar- 
rived when  the  Greek  theory  of  a  Law  of  Nature 
was  applied  to  the  practical  Roman  administration 
of  the  Law  common  to  all  Nations. 

The  Jus  Naturale,  or  Law  of  Nature,  is  simply 
the  Jus  Gentium  or  Law  of  Nations  seen  in  the  light 
of  a  peculiar  theory.  An  unfortunate  attempt  to 
discriminate  them  was  made  by  the  jurisconsult 
Ulpian,  with  the  propensity  to  distinguish  charac- 
teristic of  a  lawyer,  but  the  language  of  Gains,  a 
much  higher  authority,  and  the  passage  quoted  be- 
fore from  the  Institutes,  leave  no  room  for  doubt 
that  the  expressions  were  practically  convertible 
The  difference  between  them  was  entirely  historical, 
ami  no  distinction  in  .essence  could  ever  be  estab- 
lished between  them.  It  is  almost  unnecessary  to 
add  that  the  confusion  between  Jus  Gentium,  or  Law- 
common  to  all  nations,  and  international  law  is  en- 
tirely modern.  The  classical  expression  for  inter- 
national law  is  Jus  Feciale,  or  the  law  of  negotiation 
and  diplomacy.  It  is,  however,  unquestionable 
that  indistinct  impressions  as  to  the  meaning  of  Jus 
Gentium  had  considerable  share  in  producing  the 


CHAP.  III. 


NATURE. 


modem  theory  that  the  relations  of  independent 
states  are  governed  by  the  Law  of  Nature. 

It  becomes  necessary  to  investigate  the  Greek 
conceptions  of  Nature  and  her  law.  The  worcj 
<fvoiz,  which  was  rendered  in  the  Latin  natura  and 
our  nature,  denoted  beyond  all  doubt  originally 
the  material  universe  contemplated  under  an  as- 
pect which — such  is  our  intellectual  distance  from 
those  times — it  is  not  very  easy  to  delineate  in 
modern  language.  Nature  signified  the  physical 
world  regarded  as  the  result  of  some  primordial 
element  or  law.  The  oldest  Greek  philosophers 
have  been  accustomed  to  explain  the  fabric  of  crea- 
tion as  the  manifestation  of  some  single  principle 
which  they  variously  asserted  to  be  movement, 
force,  fire,  moisture,  or  generation.  In  its  simplest 
and  most  ancient  sense,  Nature  is  precisely  the 
physical  universe  looked  upon  in  this  way  as  the 
manifestation  of  a  principle.  Afterwards,  the  later 
Greek  sects,  returning  to  a  path  from  which  the 
greatest  intellects  of  Greece  had  meanwhile  strayed, 
added  the  moral  to  the  plujfskal  world  in  the  con- 
ception of  Nature.  They  extended  the  term  till  it 
embraced  not  merely  the  visible  creation,  but  the 
thoughts,  observances,  and  aspirations  of  mankind. 
Still,  as  before,  it  was  not  solely  the  moral  phe- 
nomena of  human  society  which  they  understood 
by  Xatnn\  but  these  phenomena  considered  as  re- 
solvable into  sonu!  general  and  simple  laws. 

Now,  just  as  the  oldest  Greek  theorists  sup 


52 


NATURE. 


chap,  ni. 


posed  that  the  sports  of  chance  Lad  changed  the 
material  universe  from  its  simple  primitive  form 
into  its  present  heterogeneous  condition,  so  their 
intellectual  descendants  imagined  that  but  for  un 
toward  accident  the  human  race  would  have  con 
formed  itself  to  simpler  rules  of  conduct  and  a  less 
tempestuous  life.  To  live  according  to  nature  came 
to  be  considered  as  the  end  for  which  man  was 
created,  and  which  the  best  men  were  bound  to 
compass.  To  live  according  to  nature  was  to  rise 
above  the  disorderly  habits  and  gross  indulgences 
of  the  vulgar  to  higher  laws  of  action  which  noth- 
ing  but  self-denial  and  self-command  would  enable 
the  aspirant  to  observe.  It  is  notorious  that  this 
proposition — live  according  to  nature — was  the  sum 
of  the  tenets  of  the  famous  Stoic  philosophy.  Now 
on  the  subjugation  of  Greece  that  philosophy  made 
instantaneous  progress  in  Roman  society.  It  pos- 
sessed natural  fascinations  for  the  powerful  class 
who,  in  theory  at  least,  adhered  to  the  simple 
habits  of  the  ancient  Italian  race,  and  disdained  to 
surrender  themselves  to  the  innovations  of  foreign 
fashion.  Such  persons  began  immediately  to  affect 
the  Stoic  precepts  of  life  according  to  nature — an 
affectation  all  the  more  grateful,  and,  I  may  add,  all 
the  more  noble,  from  its  contrasi  with  the  unbound- 
ed profligacy  which  was  being  diffused  through  the 
imperial  city  by  the  pillage  of  the  world  and  by  the 
example  of  its  most  luxurious  races.  In  the  front 
of  the  disciples  of  the  new  Greek  school,  we  might 


oiiap.  in. 


THE  STOICS. 


53 


be  sure,  even  if  we  did  not  know  it  historically, 
that  the  Roman  lawyers  figured.  We  have  abun- 
dant proof  that,  there  being  substantially  but  two 
professions  in  the  Roman  republic,  the  military  men) 
were  generally  identified  with  the  party  of  move- 
ment, but  the  lawyers  were  universally  at  the  head 
of  the  party  of  resistance. 

The  alliance  of  the  lawyers  with  the  Stoic  phi- 
losophers lasted  through  many  centuries.  Some  of 
the  earliest  names  in  the  series  of  renowned  juris- 
consults are  associated  with  Stoicism,  and  ultimate- 
ly we  have  the  golden  age  of  Roman  jurisprudence 
fixed  by  general  consent  at  the  era  of  the  Antouine 
Csesars,  the  most  famous  disciples  to  whom  that 
philosophy  has  given  a  rule  of  life.  The  long 
diffusion  of  these  doctrines  among  the  members  of  a 
particular  profession  was  sure  to  affect  the  art  which 
they  practised  and  influenced.  Several  positions 
which  we  find  in  the  remains  of  the  Roman  juris- 
consults are  scarcely  intelligible  unless  we  use  the 
Stoic  tenets  as  our  key  ;  but  at  the  same  time  it  is 
a  serious,  though  a  very  common,  error  to  measure 
the  influence  of  Stoicism  on  Roman  law  by  counting 
up  the  number  of  legal  rules  which  can  be,  con- 
fidently alliliated  on  Stoical  dogmas.  It  has  often 
been  observed  that  the  strength  of  Stoicism  resided 
not  in  its  canons  of  conduct,  which  were  often  re- 
pulsive and  ridiculous,  but  in  the  great  though 
vague  principle  which  it  inculcated  of  resistance  to 
passion.    Just  in  the  same  way  the  influence  on 


54 


LAW  OF  XATUTIE. 


on  a  p.  in 


jurisprudence  of  the  Greek  theories,  winch  had  tlieii 
most  distinct  expression  in  Stoicism,  consisted  not 
in  the  number  of  specific  positions  which  they  con- 
tributed to  Roman  law,  but  in  the  single  funda- 
mental assumption  which  they  lent  to  it.  After 
Nature  had  become  a  household  word  in  the  mouths 
of  the  Romans,  the  belief  gradually  prevailed  among 
the  Roman  lawyers  that  the  old  Jus  Gentium  was 
in  fact  the  lost  code  of  Nature,  and  that  the  Praetor 
in  framing  an  Edictal  jurisprudence  on  the  prin- 
ciples of  the  Jus  Gentium  was  gradually  restoring 
a  type  from  which  law  had  only  departed  to  de- 
teriorate. The  inference  from  this  belief  was  imme- 
diate that  it  was  the  Praetor's  duty  to  supersede  the 
Civil  Law  as  much  as  possible  by  the  Edict,  to  re- 
vive as  far  as  might  be  the  institutions  by  which 
Nature  had  governed  man  in  the  primitive  state. 
Of  course  there  were  many  impediments  to  the 
amelioration  of  law  by  this  agency.  There  may 
have  been  prejudices  to  overcome  even  in  the  legal 
profession  itself,  and  Roman  habits  were  far  too 
tenacious  to  give  way  at  once  to  mere  philosophical 
theory.  The  indirect  methods  by  which  the  Edicl 
combated  certain  technical  anomalies,  show  (lie  cau- 
tion which  its  authors  were  compelled  to  observe, 
and  down  to  the  very  days  of  Justinian  there  was 
some  part  of  the  old  law  which  had  obstinately  re- 
sisted its  influence.  But  on  the  whole,  the  progress 
of  the  Romans  in  legal  improvement  was  astonish- 
ingly rapid  as  soon  as  stimulus  was  applied  to  it  by 


cbap.  in. 


EQUITY. 


the  theory  of  Natural  Law.  The  ideas  of  simpli- 
fication and  generalization  had  always  been  asso^ 
ciated  with  the  conception  of  Nature ;  simplicity, 
symmetry,  and  intelligibility  came  therefore  to  be 
regarded  as  the  characteristics  of  a  good  legal  sys- 
tem, and  the  taste  for  involved  language,  multiplied 
ceremonials,  and  useless  difficulties  disappeared  al- 
together. The  strong  will  and  unusual  opportuni- 
ties of  Justinian  were  needed  to  bring  the  Roman 
law  into  its  existing  shape,  but  the  ground  plan  of 
the  system  had  been  sketched  long  before  the  im- 
perial reforms  were  effected. 

What  was  the  exact  point  of  contact  between 
the  old  Jus  Gentium  and  the  Law  of  Nature  ?  I 
think  that  they  touch  and  blend  through  iEquitas, 
or  Equity  in  its  original  sense  ;  and  here  we  seem  to 
come  to  the  first  appearance  in  jurisprudence  of  this 
famous  term,  Equity.  In  examining  an  expression 
which  has  so  remote  an  origin  and  so  long  a  history 
as  this,  it  is  always  safest  to  penetrate,  if  possible, 
to  the  simple  metaphor  or  figure  which  at  first 
shadowed  forth  the  conception.    It  has  generally 

been  supposed  that  .  Kquitas  is  t  he  equivalent  of  the 
Greek  iotjr/^,  i.  e.  the  principle  of  equal  or  propor- 
tionate distribution.  The  equal  division  of  num- 
bers or  physical  magnitudes  is  doubtless  closely  en- 
twined with  our  perceptions  of  justice;  there  arc 
few  associations  which  keep  their  ground  in  the 
mind  so  stubbornly  or  are  dismissed  from  it  with 
such  difficulty  by  the  deepest  thinkers.    Vet  in 


56 


EQUITY. 


chap,  m 


tracing  the  history  of  this  association,  it  certainly 
does  not  seem  to  have  suggested  itself  to  very  earl)' 
thought,  but  is  rather  the  offspring  of  a  compara- 
tively late  philosophy.  It  is  remarkable  too  that 
the  "  equality  "  of  laws  on  which  the  Greek  democ- 
racies prided  themselves — that  ecpiality  which,  in 
the  beautiful  drinking  sous;  of  Callistratus,  Harmo- 
dius  and  Aristogiton  are  said  to  have  given  to 
Athens — had  little  in  common  with  the  "  equity  " 
of  the  Romans.  The  first  was  an  equal  adminis- 
tration of  civil  laws  among  the  citizens,  however 
limited  the  class  of  citizens  iniidit  be  ;  the  last  im- 
plied  the  applicability  of  a  law,  which  was  not  civil 
law,  to  a  class  which  did  not  necessarily  consist  of 
citizens.  The  first  excluded  a  despot ;  the  last  in- 
cluded foreigners,  and  for  some  purposes  slaves. 
On  the  whole,  I  should  be  disposed  to  look  in 
another  direction  for  the  germ  of  the  Roman 
"  Equity."  The  Latin  word  "  aequus  "  carries  with 
it  more  distinctly  than  the  Greek  "  ioog  "  the  sense 
of  levelling.  Now  its  levelling  tendency  was  exact- 
ly the  characteristic  of  the  Jus  Gentium,  which 
would  be  most  striking  to  a  primitive  Roman.  The 
pure  Quiritarian  law  recognised  a  multitude  of  ar- 
bitrary distinctions  between  classes  of  men  and 
kinds  of  property ;  the  Jus  Gentium,  generalised 
from  a  comparison  of  various  customs,  neglected  the 
Quiritarian  divisions.  The  old  Roman  law  estab- 
lished, for  example,  a  fundamental  difference  be- 
tween "Agnatic  "  and  "  Cognatic  "  relationship,  that 


5ITAP.  III. 


LAW  OF  NATURE. 


57 


is,  between  the  Family  considered  as  based  upon 
common  subjection  to  patriarchal  authority  and  the 
Family  considered  (in  conformity  with  modern 
ideas)  as  united  through  the  mere  fact  of  a  com 
mou  descent.  This  distinction  disappears  in  th^ 
"  law  common  to  all  nations,"  as  also  does  the  dif- 
ference between  the  archaic  forms  of  property, 
Things  "  Mancipi  "  and  Things  "  nec  Mancipi."  The 
neglect  of  demarcations  and  boundaries  seems  to 
me,  therefore,  the  feature  of  the  Jus  Gentium  which 
was  depicted  in  yEquitas.  I  imagine  that  the  word 
Was  at  first  a  mere  description  of  that  constant  lev- 
elling or  removal  of  irregularities  which  went  on 
wherever  the  praetorian  system  was  applied  to  the 
cases  of  foreign  litigants.  Probably  no  colour  of 
ethical  meaning  belonged  at  first  to  the  expression  ; 
nor  is  there  any  reason  to  believe  that  the  process 
which  it  indicated  was  otherwise  than  extremely 
distasteful  to  the  primitive  Roman  mind. 

On  the  other  hand,  the  feature  of  the  Jus  Gen- 
tium .which  was  presented  to  the  apprehension  of  a 
Koman  by  the  word  Equity,  was  exactly  the  first 
and  most  vividly  realised  characteristic  of  the  hypo- 
thetical state  of  nature.  Nature  implied  symmetri 
cal  order,  first  in  the  physical  world,  and  next  in 
the  moral,  and  the  earliest  notion  of  order  doubt- 
less involved  straight  lines,  even  surfaces,  and  meas 
ured  distances.  The  same  sort  of  picture  or  figure 
would  be  unconsciously  before  the  mind's  eye, 
whether  it  strove  to  form  the  outlines  of  the  sup 


58 


EQUITY. 


CHAP.  Ill 


posed  natural  state,  or  whether  it  took  iu  at  a  glauee 
the  actual  administration  of  the  "  law  common  to 
ill  nations  ; "  and  all  we  know  of  primitive  thought 
would  lead  us  to  conclude  that  this  ideal  similarity 
would  do  much  to  encourage  the  belief  in  an  iden- 
tity of  the  two  conceptions.  But  then,  while  the 
Jus  Gentium  had  little  or  no  antecedent  credit  at 
Rome,  the  theory  of  a  Law  of  Nature  came  in  sur 
rounded  with  all  the  prestige  of  philosophical  au 
thority,  and  invested  with  the  charms  of  association 
with  an  elder  and  more  blissful  condition  of  the 
race.  It  is  easy  to  understand  how  the  difference  in 
the  point  of  view  would  affect  the  dignity  of  the 
term  which  at  once  described  the  operation  of  the 
old  principles  and  the  results  of  the  new  theory. 
Even  to  modern  ears  it  is  not  at  all  the  same  thing 
to  describe  a  process  as  one  of  "  levelling  "  and  to 
call  it  the  "  correction  of  anomalies,"  though  the 
metaphor  is  precisely  the  same.  Nor  do  I  doubt 
that,  when  once  ^Equitas  was  understood  to  con- 
vey an  allusion  to  the  Greek  theory,  associations 
which  grew  out  of  the  Greek  notion  of  ioortjg  began 
to  cluster  round  it.  The  language  of  Cicerq  renders 
it  more  than  likely  that  this  was  so,  and  it  was  the 
first  stage  of  a  transmutation  of  the  conception  of 
Equity,  which  almost  every  ethical  system  which 
has  appeared  since  those  days  has  more  or  less 
helped  to  carry  on. 

Something  must  be  said  of  the  formal  instru- 
mentality by  which  the  principles  and  distinctions 


CD  A  P.  III. 


THE  PPJETOR. 


59 


associated,  first  with  the  Law  common  to  all  Na- 
tions, and  afterwards  with  the  Law  of  Nature,  were 
gradually  incorporated  with  the  Roman  law.  At 
the  crisis  of  primitive  Eoman  histoiy  which  i^ 
marked  by  the  expulsion  of  the  Tarquins,  a  change 
occurred  which  has  its  parallel  in  the  early  annals 
of  many  ancient  states,  but  which  had  little  in  com- 
mon with  those  passages  of  political  affairs  which 
we  now  term  revolutions.  It  may  best  be  described 
by  saying  that  the  monarchy  was  put  into  commis- 
sion. The  powers  heretofore  accumulated  in  the 
hands  of  a  single  person  were  parcelled  out  among 
a  number  of  elective  functionaries,  the  veiy  name 
of  the  kingly  office  being  retained  and  imposed  on 
a  personage  known  subsequently  as  the  Rex  Sac- 
rorum  or  Rex  Sacrificulus.  As  part  of  the  change, 
the  settled  duties  of  the  supreme  judicial  office  de- 
volved on  the  Praetor,  at  the  time  the  first  function- 
ary in  the  commonwealth,  and  together  with  these 
duties  was  transferred  the  undefined  supremacy 
over  law  and  legislation  which  always  attached  to 
ancient  sovereigns,  and  which  is  not  obscurely  re- 
lated  to  the  patriarchal  and  heroic  authority  they 
had  once  enjoyed.  The  circumstances  of  Rome  gave 
great  importance  to  the  more  indefinite  portion  of 
the  functions  thus  transferred,  as  with  the  establish- 
ment of  the  republic  'began  that  series  of  recurrent 

trials  which  overtook  the  state,  in  the  difficulty  of 
dealing  with  a  multitude  of  persons  who,  not  coin- 
ing within  the  technical  description  of  indigenous 


60  TIIE  EDICT.  chap,  m 

Romans,  were  nevertheless  permanently  locate-! 
within  Roman  jurisdiction.  Controversies  between 
such  persons,  or  between  such  persons  and  native- 
born  citizens,  could  have  remained  without  the  pale 
of  the  remedies  provided  by  Roman  law,  if  th< 
Praetor  had  not  undertaken  to  decide  them,  and  he 
must  soon  have  addressed  himself  to  the  more  crit 
ical  disputes  which  in  the  extension  of  commerce 
arose  between  Roman  subjects  and  avowed  foreign- 
ers. The  great  increase  of  such  cases  in  the  Roman 
Courts  about  the  period  of  the  first  Punic  War  is 
marked  by  the  appointment  of  a  special  Praetor, 
known  subsequently  as  the  Praetor  Peregrinus,  who 
gave  them  his  undivided  attention.  Meantime,  one 
precaution  of  the  Roman  people  against  the  revival 
of  oppression,  had  consisted  in  obliging  every  ma- 
gistrate whose  duties  had  any  tendency  to  expand 
their  sphere,  to  publish,  on  commencing  his  year  of 
office,  an  Edict  or  proclamation,  in  which  he  declaret 
the  manner  in  which  he  intended  to  administer  his 
department.  The  Praetor  fell  under  the  rule  with 
other  magistrates  ;  but  as  it  was  necessarily  impos- 
sible to  construct  each  year  a  separate  system  of 
principles,  he  seems  to  ha  ve  regularly  republished 
his  predecessor's  Edict  with  such  additions  and 
changes  as  the  exigency  of  the  moment  or  his  own 
views  of  the  law  compelled  him  to  introduce.  The 
Praetor's  proclamation,  thus  lengthened  by  a  new 
portion  every  year,  obtained  the  name  of  the  Edio 
turn  Perpetuum,  that  is,  the  continuous  or  unbroken 


CHAP.  III. 


THE  PRAETOR. 


01 


edict.  The  immense  length  to  which  it  extended, 
together  perhaps  with  some  distaste  for  its  neces- 
sarily disorderly  texture,  caused  the  practice  of  in- 
creasing it  to  be  stopped  in  the  year  of  Salvius 
Julianus,  who  occupied  the  magistracy  in  the  reign 
of  the  Emperor  Hadrian.  The  edict  of  that  Praetor 
embraced  therefore  the  whole  body  of  equity  juris- 
prudence, which  it  probably  disposed  in  new  and 
symmetrical  order,  and  the  perpetual  edict  is  there- 
fore often  cited  in  Roman  law  merely  as  the  Edict 
of  Julianus. 

Perhaps  the  first  inquiry  which  occurs  to  an  Eng- 
lishman who  considers  the  peculiar  mechanism  of 
the  Edict  is,  what  were  the  limitations  by  which 
these  extensive  powers  of  the  Praetor  were  restrain- 
ed ?  How  was  authority  so  little  definite  to  be 
reconciled  with  a  settled  condition  of  society  and 
law  ?  The  answer  can  only  be  supplied  by  careful 
obserxation  of  the  conditions  under  which  our  own 
English  Law  is  administered.  The  Praetor,  it  should 
be  recollected,  was  a  jurisconsult  himself,  or  a  per- 
son entirely  in  the  hands  of  advisers  who  were 
jurisconsults,  and  it  is  probable  that  every  Roman 
lawyer  waited  impatiently  for  the  time  when  he 
should  fill  or  control  the  great  judicial  magistracy. 
In  the  interval,  his  tastes,  feelings,  prejudices,  and 
degree  <>f  enlightenment  were  inevitably  those  of 
his  own  order,  and  the  qualifications  which  he  ulti- 
mately brought  to  office  were  those  which  he  had 
acquired  in  the  practice  and  study  of  his  profession 


62 


RESTRAINTS  OX  THE  PRJETOR. 


An  English  Chancellor  goes  through  j>recisely  the 
same  training,  and  carries  to  the  woolsack  the  same 
qualifications.  It  is  certain  when  he  assumes  office 
that  he  will  have,  to  some  extent,  modified  the  law 
before  he  leaves  it ;  but  until  he  has  quitted  his 
seat,  and  the  series  of  his  decisions  in  the  Law  Re- 
ports has  been  completed,  we  cannot  discover  how 
far  he  has  elucidated  or  added  to  the  principles 
which  his  predecessors  bequeathed  to  him.  The  in- 
fluence of  the  Praetor  on  Roman  jurisprudence  dif- 
fered only  in  respect  of  the  period  at  which  its 
amount  was  ascertained.  As  was  before  stated,  he 
was  in  office  but  for  a  year,  and  his  decisions  ren- 
dered during  his  year,  though  of  course  irreversible 
as  regarded  the  litigants,  were  of  no  ulterior  value. 
The  most  natural  moment  for  declaring  the  changes 
he  proposed  to  effect,  occurred  therefore  at  his  en- 
trance on  the  praetorship ;  and  hence,  when  com- 
mencing his  duties,  he  did  openly  and  avowedly 
that  which  in  the  end  his  English  representative 
does  insensibly  and  sometimes  unconsciously.  The 
checks  on  his  apparent  liberty  are  precisely  those 
imposed  on  an  English  judge.  Theoretically  there 
seems  to  be  hardly  any  limit  to  the  powers  of  either 
of  them,  but  practically  the  Roman  Praetor,  no  less 
than  the  English  Chancellor,  was  kept  within  the 
narrowest  bounds  by  the  prepossessions  imbibed 
from  early  training,  and  by  the  strong  restraints  of 
professional  opinion,  restraints  of  which  the  strin- 
gency can  only  be  appreciated  by  those  who  have 


OH  A  p.  ni. 


EQUITY. 


6? 


personally  experienced  them.  It  may  be  added 
that  the  lines  within  which  movement  is  permitted, 
and  beyond  which  there  is  to  be  no  travelling, 
were  chalked  with  as  much  distinctness  in  the  one 
case  as  in  the  other.  In  England  the  judge  follows 
the  analogies  of  reported  decisions  on  insulated 
groups  of  facts.  At  Rome,  as  the  intervention  of 
the  Praetor  Avas  at  first  dictated  by  simple  concern 
for  the  safety  of  the  state,  it  is  likely  that  in  the 
earliest  times  it  was  proportioned  to  the  difficulty 
which  it  attempted  to  get  rid  of.  Afterwards, 
when  the  taste  for  principle  had  been  diffused  by 
the  Responses,  he  no  doubt  used  the  Edict  as  the 
means  of  giving  a  wider  application  to  those  funda- 
mental principles  which  he  and  the  other  practising 
jurisconsults,  his  contemporaries,  believed  them- 
selves to  have  detected  underlying  the  law.  Lat- 
terly he  acted  wholly  under  the  influence  of  Greek 
philosophical  theories,  which  at  once  tempted  him 
to  advance  and  confined  him  to  a  particular  course 
of  progress. 

The  nature  of  the  measures  attributed  to  Salvius 
Julianus  has  been  much  disputed.  Whatever  they 
Were,  their  effects  on  the  Edict  are  sufficiently  plain. 
It  ceased  to  be  extended  by  annual  additions,  and 
henceforward  the  equity  jurisprudence  of  Rome  was 
developed  by  the  labours  of  a  succession  of  great 
jurisconsults  who  fill  with  their  writings  the  inter- 
val between  the  rei<ni  of  Hadrian  and  the  rciini  of 
Alexander  Severus.    A  fragment  of  the  wonderful 


64 


ROMAN  EQUITY. 


chap.  in. 


system  which  they  built  up  survives  iu  the  Pan- 
dects of  Justinian,  and  supplies  evidence  that  their 
works  took  the  form  of  treatises  on  all  parts  of  Ro- 
man law,  but  chiefly  that  of  commentaries  on  the 
Edict.  Indeed,  wrhatever  be  the  immediate  subject 
of  a  jurisconsult  of  this  epoch,  he  may  always  be 
called  an  expositor  of  Equity.  The  principles  of 
the  Edict  had,  before  the  epoch  of  its  cessation, 
made  their  way  into  every  part  of  Roman  jurispru- 
dence. The  Equity  of  Rome,  it  should  be  under- 
stood, even  when  most  distinct  from  the  Civil  Law, 
was  always  administered  by  the  same  tribunals. 
The  Praetor  was  the  chief  equity  judge  as  well  as 
the  great  common  law  magistrate,  and  as  soon  as 
the  Edict  had  evolved  an  equitable  rule  the  Prae- 
tor's court  began  to  apply  it  in  place  of  or  by  the 
side  of  the  old  rule  of  the  Civil  Law,  which  was 
thus  directly  or  indirectly  repealed  without  any  ex- 
press enactment  of  the  legislature.  The  result,  of 
course,  fell  considerably  short  of  a  complete  fusion 
of  law  and  equity,  which  was  not  carried  out  till 
the  reforms  of  Justinian.  The  technical  severance 
of  the  two  elements  of  jurisprudence  entailed  some 
confusion  and  some  inconvenience,  and  there  were 
certain  of  the  stubborner  doctrines  of  the  Civil  Law 
with  which  neither  the  authors  nor  the  expositors 
of  the  Edict  had  ventured  to  interfere.  But  at  the 
same  time  there  was  no  corner  of  the  field  of  juris- 
prudence which  was  not  more  or  less  swept  over  by 
the  influence  of  Equity.    It  supplied  the  jurist  with 


CHAP.  III. 


EQUITY. 


65 


all  his  materials  for  generalisation,  with,  all  his 
methods  of  interpretation,  with  his  elucidations  of 
first  principles,  and  with  that  great  mass  of  limiting 
rules  which  are  rarely  interfered  with  by  the  legis 
lator,  but  which  seriously  control  the  application 
of  every  legislative  act. 

The  period  of  jurists  ends  with  Alexander  Sev- 
erus.  From  Hadrian  to  that  emperor  the  improve- 
ment of  law  was  carried  on,  as  it  is  at  the  present 
moment  in  most  continental  countries,  partly  by 
approved  commentaries  and  partly  by  direct  legis- 
lation. But  in  the  reign  of  Alexander  Severus  the 
power  of  growth  in  Roman  Equity  seems  to  be  ex- 
hausted, and  the  succession  of  jurisconsults  comes 
to  a  close.  The  remaining  history  of  the  Roman 
law  is  the  history  of  the  imperial  constitutions,  and, 
at  the  last,  of  attempts  to  codify  what  had  now  be- 
come the  unwieldy  body  of  Roman  jurisprudence. 
We  have  the  latest  and  most  celebrated  experiment 
of  this  kind  in  the  Corpus  Juris  of  Justinian. 

It  would  be  wearisome  to  enter  on  a  detailed 
comparison  or  contrast  of  English  and  Ivoman 
Equity  ;  but  it  may  be  worth  while  to  mention  two 
features  which  they  have  in  common.  The  first 
may  be  stated  as  follows.  Each  of  them  tended, 
and  all  such  systems  lend,  to  exactly  the  same  state 
in  which  t lie  old  common  law  was  when  Equity 
first  interfered  with  it.  A  time  always  comes  at 
which  the  moral  principles  originally  adopted  have 
been  carried  out  to  all  their  legitimate  consequences, 
5 


66  ENGLISH  AND  ROMAN  EQUITY.        chap.  m. 

and  then  the  system  founded  on  them  becomes  as 
rigid,  as  unexpansive,  and  as  liable  to  fall  behind 
moral  progress  as  the  sternest  code  of  rules  avowed- 
ly legal.  Such  an  erjoch  was  reached  at  Rome  in  the 
reign  of  Alexander  Seyerus ;  after  which,  though 
the  whole  Roman  world  was  undergoing!:  a  moral 
revolution,  the  Equity  of  Rome  ceased  to  expand. 
The  same  point  of  legal  history  was  attained  in 
England  under  the  chancellorship  of  Lord  El  don, 
the  first  of  our  equity  judges  who,  instead  of  en- 
largiug  the  jurisprudence  of  his  court  by  indirect 
legislation,  devoted  himself  through  life  to  explain- 
ing and  harmonising  it.  If  the  philosophy  of  legal 
history  were  better  understood  in  England,  Lord 
Eldon's  services  would  be  less  exaggerated  on  the 
one  hand  and  better  appreciated  on  the  other  than 
they  appear  to  be  among  contemporary  lawyers. 
Other  misapprehensions  too,  which  bear  some  prac- 
tical fruit,  would  perhaps  be  avoided.  It  is  easily 
seen  by  English  lawyers  that  English  Equity  is  a 
system  founded  on  moral  rules ;  but  it  is  forgotten 
that  these  rules  are  the  morality  of  past  centuries — ■ 
not  of  the  present — that  they  have  received  nearly 
as  much  application  as  they  are  capable  of,  and 
that,  though  of  course  they  do  not  differ  largely 
from  the  ethical  creed  of  our  own  day,  they  are  not 
necessarily  on  a  level  with  it.  The  imperfecl  theo- 
ries of  the  subject  which  are  commonly  adopted 
have  generated  errors  of  opposite  sorts.  Many 
w  riters  of  treatises  on  Equity,  struck  with  the  com 


OEAP.  IIL 


EQUITY. 


pleteness  of  the  system  in  its  present  state,  commit 
themselves  expressly  or  implicitly  to  the  paradox- 
ical assertion  that  the  founders  of  the  chancery  ju- 
risprudence contemplated  its  present  fixity  of  form 
when  they  were  settling  its  first  bases.  Others, 
again,  complain — and  this  is  a  grievance  frequent- 
ly observed  upon  in  forensic  arguments — that  the 
moral  rules  enforced  by  the  Court  of  Chancery  fall 
short  of  the  ethical  standard  of  the  present  day. 
They  would  have  each  Lord  Chancellor  perform 
precisely  the  same  office  for  the  jurisprudence  which 
he  finds  ready  to  his  hand,  which  was  performed 
for  the  old  common  law  by  the  fathers  of  English 
equity.  But  this  is  to  invert  the  order  of  the  agen- 
cies by  which  the  improvement  of  the  law  is  carried 
on.  Equity  has  its  place  and  its  time  ;  but  I  have 
pointed  out  that  another  instrumentality  is  ready 
to  succeed  it  when  its  energies  are  spent. 

Another  remarkable  characteristic  of  both  Emr- 

O 

lish  and  Roman  Equity  is  the  falsehood  of  the  as- 
sumptions upon  w  hich  the  claim  of  the  equitable  to 
superiority  over  the  legal  rule  is  originally  defend- 
ed. Nothing  is  more  distasteful  to  men,  either  as 
individuals  or  as  masses,  than  the  admission  of  their 
moral  progress  as  a  substantive  reality.  This  un- 
willingness shows  itself,  as  regards  individuals,  in 
the  exaggerated  respect  which  is  ordinarily  paid  to 
the  doubtful  virtue;  of  consistency.  The  movement 
of  the  collective  opinion  of  a  whole  society  is  too 
palpable  to  be  ignored,  and  is  generally  too  visibly 


68 


ENGLISH  AND  EOMAN  EQUITY. 


CHAP.  111. 


for  the  better  to  be  decried  ;  but  there  is  the  great- 
est disinclination  to  accept  it  as  a  primary  phenom- 
enon, and  it  is  commonly  explained  as  the  recov- 
ery of  a  lost  perfection — the  gradual  return  to  a 
state  from  which  the  race  had  lapsed.  This  tend- 
ency to  look  backward  instead  of  forward  for  the 
goal  of  moral  progress  produced  anciently,  as  we 
have  seen,  on  Roman  jurisprudence  effects  the  most 
serious  and  permanent.  The  Eoman  jurisconsults, 
in  order  to  account  for  the  improvement  of  their 
jurisprudence  by  the  Praetor,  borrowed  from  Greece 
the  doctrine  of  a  Natural  state  of  man — a  Natural 
society — anterior  to  the  organization  of  common- 
wealths governed  by  positive  laws.  In  England, 
on  the  other  hand,  a  range  of  ideas  especially  con- 
genial to  Englishmen  of  that  day,  explained  the 
claim  of  Equity  to  override  the  common  law  by  sup- 
posing a  general  right  to  superintend  the  adminis- 
tration of  justice  which  was  assumed  to  be  vested 
in  the  king  as  a  natural  result  of  his  paternal  au- 
thority. The  same  view  appears  in  a  different  and 
quainter  form  in  the  old  doctrine  that  Equity  flowed 
from  the  king's  conscience — the  improvement  which 
had  in  fact  taken  place  in  the  moral  standard  of  the 
community  being  thus  referred  to  an  inherent  ele- 
vation in  the  moral  sense  of  the  sovereign.  The 
growth  of  the  English  constitution  rendered  such  a 
theory  unpalatable  after  a  time;  but,  as  the  juris, 
diction  of  the  Chancery  was  then  firmly  established- 
it  was  not  worth  while  to  devise  any  formal  sub 


CHAP.  III. 


EQUITY. 


G9 


stitute  for  it.  The  theories  found  in  modern  man- 
uals of  Equity  are  very  various,  but  all  alike  in 
their  untenability.  Most  of  them  are  modifications 
of  the  Roinan  doctrine  of  a  natural  law,  which  ig 
indeed  adopted  in  terms  by  those  writers  who  be- 
gin a  discussion  of  the  jurisdiction  of  the  Court  of 
Chancery  by  laying  down  a  distinction  between 
natural  justice  and  civil. 


CHAPTER  IV. 


THE  MODERN  HISTORY  OF  TEE  LAW  OF  NATURE. 

It  will  be  inferred  from  what  has  been  said  that 
the  theory  which  transformed  the  Roman  jurispru- 
dence had  no  claim  to  philosophical  precision.  It 
involved,  in  fact,  one  of  those  "  mixed  modes  of 
thought "  which  are  now  acknowledged  to  have 
characterized  all  but  the  highest  minds  during  the 
infancy  of  speculation,  and  which  are  far  from  uu- 
discoverable  even  in  the  mental  efforts  of  our  own 
day.  The  Law  of  Nature  confused  the  Past  and 
the  Present.  Logically,  it  implied  a  state  of  Na- 
ture which  had  once  been  regulated  by  natural 
law ;  yet  the  jurisconsults  do  not  speak  clearly  or 
confidently  of  the  existence  of  such  a  state,  width 
indeed  is  little  noticed  by  the  ancients  except 
where  it  finds  a  poetical  expression  in  the  fancy 
of  a  golden  age.  Natural  law,  for  all  practical 
purposes,  was  something  belonging  to  the  present, 
something  entwined  with  existing  institutions, 
something  which   could    be   distinguished  from 


chap.  iv.     MODERN  HISTORY  OF  NATURAL  LAW. 


71 


them  by  a  competent  observer.  The  test  which 
separated  the  ordinances  of  Nature  from  the  gross 
ingredients  with  which  they  were  mingled  was  a 
sense  of  simplicity  and  harmony ;  yet  it  was  n<}t 
on  account  of  their  simplicity  and  harmony  that 
these  finer  elements  were  primarily  respected,  but 
on  the  score  of  their  descent  from  the  aboriginal 

O 

reign  of  Nature.  This  confusion  has  not  been  suc- 
cessfully explained  away  by  the  modern  disciples 
of  the  jurisconsults,  and  in  truth  modern  specula- 
tions on  the  Law  of  Nature  betray  much  more 
indistinctness  of  perception  and  are  vitiated  by 
much  more  hopeless  ambiguity  of  language  than 
the  Roman  lawyers  can  be  justly  charged  with. 
There  are  some  writers  on  the  subject  who  attempt 
to  evade  the  fundamental  difficulty  by  contending 
that  the  code  of  Nature  exists  in  the  future  and  is 
the  goal  to  which  all  civil  laws  are  moving,  but 
this  is  to  reverse  the  assumptions  on  which  the  old 
theory  rested,  or  rather  perhaps  to  mix  together 
two  inconsistent  theories.  The  tendency  to  look 
not  to  the  past  but  to  the  future  for  types  of  per- 
fection was  brought  into  the  world  by  Christianity. 
Ancient  literature  gives  few  or  no  hints  of  a  belief 
that  the  progress  of  society  is  necessarily  from 
worse  to  better. 

But  the  importance  of  this  theory  to  mankind 
lias  been  very  much  greater  than  its  philosophical 
deficiencies  would  lead  us  to  expect.  Indeed,  it 
is  not  easy  to  say  what  turn  the  history  of  thought, 


PERILS  OF  EARLY  SOCIETY. 


oiiap.  it 


and  therefore,  of  the  human  race,  would  have 
taken,  if  the  belief  in  a  law  natural  had  not  become 
universal  in  the  ancient  world. 

There  are  two  special  dangers  to  which  law 
and  society  which  is  held  together  by  law,  appear 
to  be  liable  in  their  infancy.  One  of  them  is  that 
law  may  be  too  rapidly  developed.  This  occurred 
with  the  codes  of  the  more  progressive  Greek  com- 
munities, which  disembarrassed  themselves  with 
astonishing  facility  from  cumbrous  forms  of  proce- 
dure and  needless  terms  of  art,  and  soon  ceased  to 
attach  any  superstitious  value  to  rigid  rules  and 
prescriptions.  It  was  not  for  the  ultimate  advan- 
tage of  mankind  that  they  did  so,  though  the  imme- 
diate benefit  conferred  on  their  citizens  may  have 
been  considerable.  One  of  the  rarest  qualities  of 
national  character  is  the  capacity  for  applying  and 
working  out  the  law,  as  such,  at  the  cost  of  con- 
stant miscarriages  of  abstract  justice,  without  at  the 
same  time  losing  the  hope  or  the  wish  that  law 
may  be  conformed  to  a  higher  ideal.  The  Greek 
intellect,  with  all  its  nobility  and  elasticity,  ^\'as 
quite  unable  to  confine  itself  within  the  strait 
waistcoat  of  a  legal  formula  ;  and,  if  we  may  judge 
them  by  the  popular  courts  of  Athens,  of  whose 
working  we  possess  accurate  knowledge,  the  Greek 
tribunals  exhibited  the  strongest  tendency  to  con- 
found law  and  fact.  The  remains  of  the  Oiators 
and  the  forensic  commonplaces  preserved  by  Aris- 
totle in  his  Treatise  on  Khetoric,  show  that  ques 


chap.  iv.     NATURAL  LAW  OF  THE  JURISCONSULTS.  73 


tions  of  pure  law  were  constantly  argued  on  eveiy 
consideration  which  could  possibly  influence  the 
mind  of  the  judges.  ~No  durable  system  of  juris- 
prudence could  be  produced  in  this  way.  A  conij 
munity  which  never  hesitated  to  relax  rules  of 
written  law  whenever  they  stood  in  the  way  of  an 
ideally  perfect  decision  on  the  facts  of  particular 
cases,  would  only,  if  it  bequeathed  any  body  of 
judicial  principles  to  posterity,  bequeath  one  con- 
sisting of  the  ideas  of  right  and  wrong  which  hap- 
pened to  be  prevalent  at  the  time.  Such  jurispru- 
dence would  contain  no  framework  to  which  the 
more  advanced  conceptions  of  subsequent  ages 
could  be  fitted.  It  would  amount  at  best  to  a 
philosophy,  marked  with  the  imperfections  of  the 
civilisation  under  which  it  grew  up. 

Few  national  societies  have  had  their  jurispru- 
dence menaced  by  this  peculiar  danger  of  precocious 
maturity  and  untimely  disintegration.  It  is  cer- 
tainly doubtful  whether  the  Eomans  were  ever 
seriously  threatened  by  it,  but  at  any  rate  they  had 
adequate  protection  in  their  theory  of  Natural  Law. 
For  the  Natuial  Law  of  the  jurisconsults  was  dis- 
tinctly conceived  by  them  as  a  system  which  ought 
gradually  to  absorb  civil  laws,  without  superseding 
them  so  long  as  they  remained  unrepealed.  There 
was  no  such  impression  of  its  sanctity  abroad,  that 
an  appeal  to  it  would  be  likely  to  overpower  the 
mind  of  a  judge  who  was  charged  with  the  superin- 
tendence of  a  particular  litigation.    The  value  and 


74 


LAW  OF  XATURE. 


chap,  it. 


serviceableness  of  the  conception  arose  from  its 
keeping  before  the  mental  vision  a  type  of  perfect 
law,  and  from  its  inspiring  the  hope  of  an  indefinite 
approximation  to  it,  at  the  same  time  that  it  nevei 
tempted  the  practitioner  or  the  citizen  to  deny  the 
obligation  of  existing  laws  which  had  not  yet  been 
adjusted  to  the  theory.  It  is  important  too  to  ob- 
serve that  this  model  system,  unlike  many  of  those 
which  have  mocked  men's  hopes  in  later  days,  was 
not  entirely  the  product  of  imagination.  It  was 
never  thought  of  as  founded  on  quite  untested  prin- 
ciples. The  notion  was  that  it  underlay  existing 
law  and  must  be  looked  for  through  it.  Its  func- 
tions were  in  short  remedial,  not  revolutionary  or 
anarchical.  And  this,  unfortunately,  is  the  exact 
point  at  which  the  modern  view-  of  a  Law  of  Na- 
ture has  often  ceased  to  resemble  the  ancient. 

The  other  liability  to  which  the  infancy  of  socie- 
ty is  exposed  has  prevented  or  arrested  the  progress 
of  far  the  greater  part  of  mankind.  The  rigidity  of 
primitive  law,  arising  chiefly  from  its  early  associa- 
tion and  identification  with  religion,  has  chained 
down  the  mass  of  the  human  race  to  those  views 
of  life  and  conduct  which  they  entertained  at  the 
time  when  their  usages  were  first  consolidated  into 
a  systematic  form.  There  were  one  or  two  races 
exempted  by  a  marvellous  fate  from  this  calamity, 
and  grafts  from  these  stocks  have  fertilised  a  few 
modern  societies ;  but  it  is  still  true  that,  over  the 
larger  part  of  the  world,  the  perfection  of  law  haa 


cn.vr.  iv.        HISTORY  OF  LAW  OF  NATURE.  7C 


always  been  considered  as  consisting  in  adherence  to 
the  ground  plan  supposed  to  have  been  marked  out 
by  the  original  legislator.  If  intellect  has  in  such 
cases  been  exercised  on  jurisprudence,  it  has  uni- 
formly prided  itself  on  the  subtle  perversity  of  the 
conclusions  it  could  build  on  ancient  texts,  without 
discoverable  departure  from  their  literal  tenour.  I 
know  no  reason  why  the  law  of  the  Romans  should 
be  superior  to  the  laws  of  the  Hindoos,  unless  the 
theory  of  Natural  Law  had  given  it  a  type  of  excel- 
lence different  from  the  usual  one.  In  this  one  ex- 
ceptional instance,  simplicity  and  symmetry  were 
kept  before  the  eyes  of  a  society  whose  influence  on 
mankind  was  destined  to  be  prodigious  from  other 
causes,  as  the  characteristics  of  an  ideal  and  abso- 
lutely perfect  law.  It  is  impossible  to  overrate  the 
importance  to  a  nation  or  profession  of  having  a  dis- 
tinct object  to  aim  at  in  the  pursuit  of  improvement. 
The  secret  of  Benthanrs  immense  influence  in  Emr- 
land  during  the  past  thirty  years  is  his  success  in 
placing  such  an  object  before  the  country.  He  gave 
Ofl  a  clear  rule  of  reform.  English  lawyers  of  the 
last  century  were  probably  too  acute  to  be  blinded 
by  the  paradoxical  commonplace  that  English  law 
was  the  perfection  of  human  reason,  but  tlicy  acted 
as  if  they  believed  it,  for  want  of  any  other  prin- 
ciple to  proceed  upon.  Bentham  made  the  good  of 
the  community  take  precedence  of  every  other  ob- 
ject,  aud  thus  gave  escape  to  a  current  which  had 
long  been  trying  to  Hnd  its  way  outwards. 


70 


HISTORY  OF  LAW  OF  NATURE. 


onir.  it. 


It  is  not  an  altogether  fanciful  comparison  if  we 
call  the  assumptions  we  have  been  describing  the 
ancient  counterpart  of  Beutha'mism.  The  Roman 
theory  guided  men's  efforts  in  the  same  direction  as 
the  theory  put  into  shape  by  the  Englishman;  its 
practical  results  were  not  widely  different  from 
those  which  would  have  been  attained  by  a  sect  of 
law-reformers  who  maintained  a  steady  pursuit  of 
the  general  good  of  the  community.  It  would  be  a 
mistake,  however,  to  suppose  it  a  conscious  anticipa- 
tion of  Beutham's  principles.  The  happiness  of 
mankind  is,  no  doubt,  sometimes  assigned  both  in 
the  popular  and  in  the  legal  literature  of  the  Ro- 
mans, as  the  proper  object  of  remedial  legislation, 
but  it  is  very  remarkable  how  few  and  faint  are  the 
testimonies  to  this  principle  compared  with  the  trib- 
utes which  are  constantly  offered  to  the  over- 
shadowing claims  of  the  Law  of  Nature.  It  was 
not  to  anything  resembling  philanthropy,  but  tc 
their  sense  of  simplicity  and  harmony — of  what 
they  significantly  termed  "  elegance " — that  the 
Roman  jurisconsults  freely  surrendered  themselves. 
The  coincidence  of  their  labours  with  those  which 
a  more  precise  philosophy  would  have  counselled 
has  been  part  of  the  good  fortune  of  mankind. 

Turning  to  the  modern  history  of  the  law  of  na- 
ture, we  find  it  easier  to  convince  ourselves  of  the 
vastness  of  its  influence  than  to  pronounce  confi- 
dently whether  that  influence  has  been  exerted  for 
good  or  for  evil.    The  doctrines  and  institutions 


cnAP.  iv. 


THE  FRENCH  LAWYERS. 


which  may  be  attributed  to  it  are  the  material  of 
some  of  the  most  violent  controversies  debated  in 
our  time,  as  will  be  seen  when  it  is  stated  that  the 
theory  of  Natural  Law  is  the  source  of  almost  all  tl)e 
special  ideas  as  to  law,  politics,  and  society  which 
France  during  the  last  hundred  years  has  been  the 
instrument  of  diffusing  over  the  western  world. 
The  part  played  by  jurists  in  French  history,  and 
the  sphere  of  jural  conceptions  in  French  thought, 
have  always  been  remarkably  large.  It  was  not  in- 
deed in  France,  but  in  Italy,  that  the  juridical  science 
of  modern  Europe  took  its  rise,  but  of  the  schools 
founded  by  emissaries  of  the  Italian  universities  in 
all  parts  of  the  continent,  and  attempted  (though 
vainly)  to  be  set  up  in  our  island,  that  established 
in  France  produced  the  greatest  effect  on  the  for- 
tunes of  the  country.  The  lawyers  of  France  imme- 
diately formed  a  strict  alliance  with  the  kings  of  the 
houses  of  Capet  and  Valois,  and  it  was  as  much 
through  their  assertions  of  royal  prerogative,  and 
through  their  interpretations  of  the  rules  of  feudal 
Buoceseion,  as  by  the  power  of  the  sword,  that  the 
l'nnch  monarchy  at  last  grew  together  out  of  the. 
agglomeration  of  provinces  and  dependcneies.  The 
enormous  advantage  which  their  understanding  with 
the  lawyers  conferred  on  the  French  kings  in  the 
prosecution  of  their  struggle  with  the  great  feuda- 
tories, tin-  aristocracy,  and  the  church,  can  only  be 
appreciated  if  we  take  into  account  the  ideas  which 
prevailed  in  Europe  far  down  into  the  middle  ages 


18 


HISTORY  OF  LAW  OF  NATUEE. 


on  a  p.  IT 


There  was,  in  the  first  place,  a  great  enthusiasm  foi 
generalisation  and  a  curious  admiration  for  all  gen- 
eral  propositions,  and  consequently,  in  the  field  of 
law,  an  involuntary  reverence  for  every  general 
formula  which  seemed  to  embrace  and  sum  up  a 
number  of  the  insulated  rules  which  were  practised 
as  usages  in  various  localities.    Such  general  formu- 
las it  was,  of  course,  not  difficult  for  practitioners 
familiar  with  the  Corpus  Juris  or  the  Glosses  to 
supply  in  almost  any  quautity.  There  was,  however, 
another  cause  which  added  yet  more  considerably 
to  the  lawyers'  power.    At  the  period  of  which  we 
are  speaking,  there  was  universal  vagueness  of  ideas 
as  to  the  degree  and  nature  of  the  authority  residing 
in  written  texts  of  law.    For  the  most  part,  the 
peremptory  preface,  Ita  scrvptwm  est,  seems  to  have 
been  sufficient  to  silence  all  objections.    Where  a 
mind  of  our  own  day  would  jealously  scrutinise  the 
formula  which  had  been  quoted,  would  inquire  its 
source,  and  would  (if  necessary)  deny  that  the  body 
of  law  to  which  it  belonged  had  any  authority  to 
supersede  local  customs,  the  elder  jurist  would  not 
probably  have  ventured  to  do  more  than  question 
the  applicability  of  the  rule,  or  at  best  cite  some 
counter-proposition  from  the  Pandects  or  the  Canon 
Law.   It  is  extremely  necessary  to  bear  in  mind  the 
uncertainty  of  men's  notions  on  this  most  important 
side  of  juridical  controversies,  not  only  because  it 
helps  to  explain  the  weight  which   the  lawyers 
threw  into  the  monarchical  scale,  but  on  account  of 


CHAP.  IV 


THE  FRENCH  LAWYERS. 


79 


the  li^-lit  which  it  sheds  on  several  curious  historical 
problems.  The  motives  of  the  author  of  the  Forged 
Decretals  and  his  extraordinary  success  are  rendered 
more  intelligible  by  it.  And,  to  take  a  phenomenon 
of  smaller  interest,  it  assists  us,  though  only  partially 
to  understand  the  plagiarisms  of  Bracton.  That  an 
English  writer  of  the  time  of  Henry  III.  should  have 
been  able  to  put  off  on  his  countrymen  as  a  com- 
pendium of  pure  English  law  a  treatise  of  which  the 
entire  form  and  a  third  of  the  contents  were  directly 
borrowed  from  the  Corpus  Juris,  and  that  he  should 
have  ventured  on  this  experiment  in  a  country 
where  the  systematic  study  of  the  Roman  law  was 
formally  proscribed,  will  always  be  among  the  most 
hopeless  enigmas  in  the  history  of  jurisprudence; 
but  still  it  is  something  to  lessen  our  surprise  when 
we  comprehend  the  state  of  opinion  at  the  period 
as  to  the  obligatory  force  of  written  texts,  apart 
from  all  consideration  of  the  source  whence  they 
were  derived. 

When  the  kings  of  France  had  brought  their 
long  struggle  for  supremacy  to  a  successful  close,  an 
epoch  which  may  be  placed  roughly  at  the  accession 
of  the  branch  of  Valois-Angouleme  to  the  throne, 
the  situation  of  the  French  jurists  was  peculiar,  and 
continued  to  be  so  down  to  the  outbreak  of  the 
revolution.  On  the.  one  hand,  they  formed  the  best, 
instructed  and  Dearly  the  most  powerful  class  in  the 
cation.  They  had  made  good  their  footing  as  a 
privileged  order  by  the  side  of  the  feudal  aristoc- 


80 


HISTORY  OF  LAW  OF  NATURE. 


CIIAP.  17 


racy,  and  they  had  assured  their  influence  by  an 
organisation  which  distributed  their  profession  over 
France  in  great  chartered  corporations  possessing 
large  defined  powers  and  still  larger  indefinite  claims. 
In  all  the  qualities  of  the  advocate,  the  judge,  and  the 
legislator,  they  far  excelled  their  compeers  through- 
out Europe.  Their  juridical  tact,  their  ease  of  ex- 
pression, their  fine  sense  of  analogy  and  harmony, 
and  (if  they  may  be  judged  by  the  highest  names 
among  them)  their  passionate  devotion  to  their 
conceptions  of  justice,  were  as  remarkable  as  the 
singular  variety  of  talent  which  they  included,  a 
variety  covering  the  whole  ground  between  the  op- 
posite poles  of  Cujas  and  Montesquieu,  of  D'Agues- 
seau  and  Dumoulin.  But,  on  the  other  hand,  the 
system  of  laws  which  they  had  to  administer  stood 
in  striking  contrast  with  the  habits  of  mind  which 
they  had  cultivated.  The  France  which  had  been 
in  great  part  constituted  by  their  efforts  was  smitten 
with  the  curse  of  an  anomalous  and  dissonant  juris- 
prudence beyond  every  other  country  in  Europe. 
One  great  division  ran  through  the  country  and 
separated  it  into  Pays  du  Droit  JEcrit  and  Pays  du 
Droit  Coutumier,  the  first  acknowledging  the  writ- 
ten Roman  law  as  the  basis  of  their  jurisprudence, 
the  last  admitting  it  only  so  far  as  it  supplied  gen- 
eral forms  of  expression,  and  courses  of  juridical 
reasoning,  which  -were  reconcileable  with  the  local 
usages.  The  sections  thus  formed  were  again  vari 
ously  subdivided.    In  the  Pays  du  Droit  Coutu 


CHAP.  IV. 


THE  FRENCH  LAWYERS. 


81 


mier  province  differed  from  province,  county  from 
"ouuty,  municipality  from  municipality,  in  the  nature 
of  its  customs.  In  the  Pays  du  Droit  Ecrit  the 
stratum  of  feudal  rules  which  overlay  the  Roman 
law  was  of  the  most  miscellaneous  composition.  X6 
such  confusion  as  this  ever  existed  in  England.  In 
Germany  it  did  exist,  but  was  too  much  in  harmony 
with  the  deep  political  and  religious  divisions  of  the 
country  to  be  lamented  or  even  felt.  It  was  the 
special  peculiarity  of  France  that  an  extraordinary 
diversity  of  laws  continued  without  sensible  altera- 
tion while  the  central  authority  of  the  monarchy 
was  constantly  strengthening  itself,  while  rapid  ap- 
proaches were  being  made  to  complete  administra- 
tive unity,  and  while  a  fervid  national  spirit  had 
been  developed  among  the  people.  The  contrast 
was  one  which  fructified  in  many  serious  results,  and. 
among  them  we  must  rank  the  effect  which  it  pro- 
duced on  the  minds  of  the  French  lawyers.  Their 
speculative  opinions  and  their  intellectual  bias  were 
in  the  strongest  opposition  to  their  interests  and 
professional  habits.  With  the  keenest  sense  and 
the  fullest  recognition  of  those  perfections  of  juris- 
prudence which  consist  iy  simplicity  and  uniformity, 
tin  y  believed,  or  seemed  to  believe,  that  the  vices 
which  actually  invested  French  law  were  ineradica- 
ble ;  and  in  practice,  they  often  resisted  the  reforma- 
tion of  aliases  with  an  obstinacy  which  was  not 
ihown  by  many  among  their  less  enlightened  coun- 
trymen. But  there  was  a  way  to  reconcile  these 
G 


82  '  HISTORY  OF  LAW  OF  NATURE.  chap.  it. 

contradictious.  They  became  passionate  enthusiasts 
for  Natural  Law.  The  Law  of  Nature  overleapt  all 
provincial  and  municipal  boundaries ;  it  disregarded 
all  distinctions  between  noble  and  burgess,  between 
burgess  and  peasant ;  it  gave  the  most  exalted  place 
to  lucidity,  simplicity,  and  system  ;  but  it  committed 
its  devotees  to  no  specific  improvement,  and  did  not 
directly  threaten  any  venerable  or  lucrative  techni- 
cality. Natural  law  may  be  said  to  have  become 
the  common  law  of  France,  or,  at  all  events,  the 
admission  of  its  dignity  and  claims  was  the  one 
tenet  which  all  French  practitioners  alike  sub- 
scribed to.  The  language  of  the  prse-revolution- 
ary  jurists  in  its  eulogy  is  singularly  unqualified, 
and  it  is  remarkable  that  the  writers  on  the  Cus- 
toms, who  often  made  it  their  duty  to  speak  dis- 
paragingly of  the  pure  Roman  law,  speak  even 
more  fervidly  of  Nature  and  her  rules  than  the 
civilians  who  professed  an  exclusive  respect  for  the 
Digest  and  the  Code.  Dumoulin,  the  highest  of  all 
authorities  on  old  French  Customary  Law,  lias  some 
extravagant  passages  on  the  Law  of  Nature  ;  and 
his  panegyrics  have  a  peculiar  rhetorical  turn  which 
indicates  a  considerable  departure  from  the  caution 
of  the  Roman  jurisconsults.  The  hypothesis  of  a 
Natural  Law  had  become  not  so  much  a  theory 
guiding  practice  as  an  article  of  speculative  faith, 
and  accordingly  we  shall  find  that,  in  the  transfor- 
mation which  it  more  recently  underwent,  its  weak- 


ciiAr.  iv. 


ROUSSEAU. 


8E 


est  parts  rose  to  the  level  of  its  strongest  in  the 
esteem  of  its  supporters. 

The  eighteenth  century  was  half  over  when  the 
most  critical  period  in  the  history  of  Natural  Law 
was  reached.  Had  the  discussion  of  the  theory  ana 
of  its  consequences  continued  to  be  exclusively  the 
employment  of  the  legal  profession,  there  would 
possibly  have  been  an  abatement  of  the  respect 
which  it  commanded ;  for  by  this  time  the  Esprit 
des  Lois  had  appeared.  Bearing  in  some  exaggera- 
tions the  marks  of  the  excessive  violence  with  which 
its  author's  mind  had  recoiled  from  assumptions 
usually  suffered  to  pass  without  scrutiny,  yet  show- 
ing in  some  ambiguities  the  traces  of  a  desire  to 
compromise  with  existing  prejudice,  the  book  of 
Montesquieu,  with  all  its  defects,  still  proceeded  on 
that  Historical  Method  before  which  the  Law  of  * 
Nature  has  never  maintained  its  footing  for  an  in- 
stant.  Its  influence  on  thought  ought  to  have  been 
as  great  as  its  general  popularity ;  but,  in  fact,  it 
was  never  allowed  time  to  put  it  forth,  for  the 
counter-hypothesis  which  it  seemed  destined  to  de 
stroy  passed  suddenly  from  the  forum  to  the  street, 
ami  became  the  key-note  of  controversies  far  more 
exciting  than  are  ever  agitated  in  the  courts  or  the 
schools.  The  person  who  launched  it  on  its  new 
career  was  that  remarkable  man  who,  without  learn- 
ing, with  few  virtues,  and  with  no  strength  of  char- 
acter, lias  nevertheless  stamped  himself  inettaeeably 
on  history  by  the  force  of  a  vivid  imagination,  and 


84  HISTORY  OF  LAW  OF  NATURE.         chat*,  iv. 


by  the  help  of  a  genuine  and  burning  love  for  his  fel 
low-men,  for  which  much  will  always  have  to  be  for 
given  him.  We  have  never  seen  in  our  own  genera- 
tion— indeed  the  world  has  not  seen  more  than  once 
or  twice  in  all  the  course  of  history — a  literature 
which  has  exercised  such  prodigious  influence  ovei 
the  minds  of  men,  over  every  cast  and  shade  of  in- 
tellect, as  that  which  emanated  from  Rousseau  be- 
tween 1749  and  1762.  It  was  the  first  attempt  to 
re-erect  the  edifice  of  human  belief  after  the  purely 
iconoclastic  efforts  commenced  by  Bayle,  and  in  part 
1  >y  our  own  Locke,  and  consummated  by  Voltaire ; 
and  besides  the  superiority  which  every  constructive 
effort  will  always  enjoy  over  one  that  is  merely  de- 
structive, it  possessed  the  immense  advantage  of  ap- 
pearing amid  an  all  but  universal  scepticism  as  to 
*  the  soundness  of  all  foregone  knowledge  in  matters 
speculative.  Now,  in  all  the  speculations  of  Rous- 
seau, the  central  figure,  whether  arrayed  in  an  Eng- 
lish dress  as  the  signatary  of  a  social  compact,  or 
simply  stripped  naked  of  all  historical  qualities,  is 
uniformly  Man,  in  a  supposed  state  of  nature.  Every 
law  or  institution  which  would  misbeseem  this 
imaginary  being  under  these  ideal  circumstances  is 
to  be  condemned  as  having  lapsed  from  an  original 
perfection ;  every  transformation  of  society  which 
would  give  it  a  closer  resemblance  to  the  world 
over  which  the  creature  of  Nature  reigned,  is  ad 
mirable  and  worthy  to  be  effected  at  any  apparent 
cost.    The  theory  is  still  that  of  the  Roman  law 


CHAP.  IV. 


THEORIES  OF  ROUSSEAU. 


85 


yers,  for  in  the  phantasmagoria  with  which  the 
Natural  Condition  is  peopled,  every  feature  and 
characteristic  eludes  the  mind  except  the  simplicity 
and  harmony  which  possessed  such  charms  for  th3 
jurisconsult ;  but  the  theory  is,  as  it  were,  turned  up« 
side  down.  It  is  not  the  Law  of  Nature,  but  the 
State  of  Nature,  which  is  now  the  primary  subject 
of  contemplation.  The  Roman  had  conceived  that 
by  careful  observation  of  existing  institutions  parts 
of  them  could  be  singled  out  which  either  exhibited 
already,  or  could  by  judicious  purification  be  made 
to  exhibit,  the  vestiges  of  that  reign  of  nature  whose 
reality  he  faintly  affirmed.  Rousseau's  belief  was 
that  a  perfect  social  order  could  be  evolved  from 
the  unassisted  consideration  of  the  natural  state,  a 
social  order  wholly  irrespective  of  the  actual  con- 
dition of  the  world  and  wholly  unlike  it.  The 
great  difference  between  the  views  is  that  one  bit* 
terly  and  broadly  condemns  the  present  for  its  un- 
likeness  to  the  ideal  past;  while  the  other,  assuming 
the  present  to  be  as  necessary  as  the  past,  does  not 
affect  to  disregard  or  censure  it.  It  is  not  worth 
our  while  to  analyse  with  any  particularity  that 
philosophy  of  politics,  art,  education,  ethics,  and 
social  relation  which  was  constructed  on  the  basis 
of  a  state  of  nature.  It  still  possesses  singular  fasci- 
nation for  the  looser  thinkers  of  every  country,  and 
is  no  doubt  the  parent,  more  or  less  remote,  of  al- 
most all  the  prepossessions  which  impede  the  em- 
ployment of  the  Historical  Method  of  impiiry,  but 


86  HISTORY  OF  LAW  OF  NATURE.  chap.it. 

its  discredit  with  the  higher  minds  of  onr  day  ia 
deep  enough  to  astonish  those  who  are  familiar  with 
the  extraordinary  vitality  of  speculative  error. 
Perhaps  the  question  most  frequently  asked  nowa 
days  is  not  what  is  the  value  of  these  opinions,  but 
what  were  the  causes  which  gave  them  such  over- 
shadowing prominence  a  hundred  years  ago.  The 
answer  is,  I  conceive,  a  simple  one.  The  study 
which  in  the  last  century  would  best  have  corrected 
the  misapprehensions  into  which  an  exclusive  atten- 
tion to  legal  antiquities  is  apt  to  betray  was  the 
study  of  religion.  But  Greek  religion,  as  then  un- 
derstood, was  dissipated  in  imaginative  myths.  The 
Oriental  religions,  if  noticed  at  all,  appeared  to  be 
lost  in  vain  cosmogonies.  There  was  but  one  body 
of  primitive  records  which  was  worth  studying — 
the  early  history  of  the  Jews.  But  resort  to  this 
was  prevented  by  the  prejudices  of  the  time.  One 
of  the  few  characteristics  which  the  school  of  Rous- 
seau had  in  common  witli  the  school  of  Voltaire 
was  an  utter  disdain  of  all  religious  antiquities;  and, 
more  than  all,  of  those  of  the  Hebrew  race.  It  is 
well  known  that  it  was  a  point  of  honour  with  the 
reasoners  of  that  day  to  assume  not  merely  that  the 
institutions  called  after  Moses  were  not  divinely  dic- 
tated, nor  even  that  they  were  codified  at  a  later 
date  than  that  attributed  to  them,  but  that  they  and 
the  entire  Pentateuch  were  a  gratuitous  forgery,  ex- 
ecuted after  the  return  from  the  Captivity.  Del  tar- 
red, therefore,  from  one  chief  security  against  specu 


chap.  iv.  THEORIES  OF  ROUSSEAU.  S7 


lative  delusion,  the  philosophers  of  France,  m  their 
eagerness  to  escape  from  what  they  deemed  a  super 
stition  of  the  priests,  flung  themselves  headlong  into 
a  superstition  of  the  lawyers. 

But  though  the  philosophy  founded  on  the  hypo- 
thesis of  a  state  of  nature  has  fallen  low  in  general 
esteem,  in  so  far  as  it  is  looked  upon  under  its  coarser 
and  more  palpable  aspect,  it  does  not  follow  that  in 
its  subtler  disguises  it  has  lost  plausibility,  popular- 
ity, or  power.  I  believe,  as  I  have  said,  that  it  is 
still  the  great  antagonist  of  the  Historical  Method; 
and  whenever  (religious  objections  apart)  any  mind 
is  seen  to  resist  or  contemn  that  mode  of  investiga- 
tion,  it  will  generally  be  found  under  the  influence 
of  a  prejudice  or  vicious  bias  traceable  to  a  conscious 
or  unconscious  reliance  on  a  non-historic,  natural, 
condition  of  society  or  the  individual.  It  is  chiefly, 
however,  by  allying  themselves  with  political  and 
social  tendencies  that  the  doctrines  of  Nature  and 
her  law  have  preserved  their  energy.  Some  of  these 
tendencies  they  have  stimulated,  others  they  have 
actually  created,  to  a  great  number  they  have  given 
expression  and  form.  They  visibly  enter  largely 
into  the  ideas  which  constantly  radiate  from  France 
over  the  civilised  world,  and  thus  become  part  of  the 
general  body  of  thought  by  which  its  civilisation  is 
modified.  The  value  of  the  influence  which  they 
thus  exercise  over  the  fortunes  of  tin:  race  is  of 
course  one  of  the  points  which  our  age  debates  most 
warmly,  and  it  h  beside  the  purpose  of  this  treatise 


ss 


HISTORY  OF  LAW  OF  NATURE.         chap.  ir. 


to  discuss  it.  Looking  back,  however,  to  tLe  period 
at  which  the  theory  of  the  state  of  nature  acquired 
the  maximum  of  political  importance,  there  are  few 
who  will  deny  that  it  helped  most  powerfully  to 
bring  about  the  grosser  disappointments  of  which 
the  first  French  revolution  was  fertile.  It  gave  birth, 
or  intense  stimulus,  to  the  vices  of  mental  habit  all 
but  universal  at  the  time,  disdain  of  positive  law,  im- 
patience of  experience,  and  the  preference  of  a  pri- 
ori to  all  other  reasoning.  In  proportion  too  as  this 
philosophy  fixes  its  grasp  on  minds  which  have 
thought  less  than  others  and  fortified  themselves 
with  smaller  observation,  its  tendency  is  to  become 
distinctly  anarchical.  It  is  surprising  to  note  how 
many  of  the  Sophismes  Ana/rchiques  which  Dumont 
published  for  Bentham,  and  which  embody  Ben- 
tham's  exposure  of  errors  distinctively  French,  are 
derived  from  the  Roman  hypothesis  in  its  French 
transformation,  and  are  unintelligible  unless  referred 
to  it.  On  this  point  too  it  is  a  curious  exercise  to 
consult  the  Moniteur  during  the  principal  eras  of 
the  Revolution.  The  appeals  to  the  Law  and  State 
of  Nature  become  thicker  as  the  times  grow  darker. 

There  is  a  single  example  which  very  strikingly 
illustrates  the  effects  of  the  theory  of  natural  law  on 
modern  society,  and  indicates  how  very  far  are 
those  effects  from  being  exhausted.  There  cannot,  I 
conceive,  be  any  question  that  to  the  assumption 
of  the  Law  Natural  we  owe  the  doctrine  of  the 
fundamental  equality  of  human  beings.    That  "  all 


CHAP.  IT. 


EQUALITY  OF  MEN*. 


59 


men  are  equal "  is  one  of  a  large  number  of  legal 
provisions  which,  in  progress  of  time,  have  become 
political.  The  Roman  jurisconsults  of  the  Anto- 
nine  era  lay  down  that  "  omnes  homines  natura 
aequalea  sunt,"  but  in  their  eyes  this  is  a  strictly  ju- 
ridical axiom.  They  intend  to  affirm  that  under 
the  hypothetical  Law  of  Xature,  and  in  so  far  as 
positive  law  approximates  to  it,  the  arbitrary  dis- 
tinctions which  the  Roman  Civil  Law  maintained 
between  classes  of  persons  cease  to  have  a  legal  ex- 
istence. The  rule  was  one  of  considerable  impor- 
tance to  the  Roman  practitioner,  who  required  to 
be  reminded  that,  wherever  Roman  jurisprudence 
was  assumed  to  conform  itself  exactly  to  the  code 
of  Xature,  there  was  no  difference  in  the  contem- 
plation of  the  Roman  tribunals  between  citizen 
and  foreigner,  between  freeman  and  slave,  Agnate 
and  Cognate.  The  jurisconsults  who  thus  expressed 
themselves  most  certainly  never  intended  to  censure 
the  social  arrangements  under  which  civil  law  fell 
somewhat  short  of  its  speculative  type;  nor  did 
they  apparently  believe  that  the  world  would  ever 
see  human  society  completely  assimilated  to  the 
economy  of  nature.  But  when  the  doctrine  of  hu 
man  equality  makes  its  appearance  in  a  modern 
dress  it  has  evidently  clothed  itself  with  a  new 
bhade  <>f  meaning.  "Where  the  Roman  jurisconsult 
had  written  "  aequales  sunt,"  meaning  exactly  what 
he  said,  the  modern  civilian  wrote  "  all  men  are 
equal  "  in  the  sense  of  "  all  men  ought  to  be  equal." 


N 


HISTORY  OF  LAW  OF  XATUEE. 


CHAr.  IT 


The  peculiar  "Roman  idea  that  natural  law  coexisted 
with  civil  law  and  gradually  absorbed  it, had  evident- 
ly  been  lost  sight  of,  or  had  become  unintelligible, 
and  the  words  which  Lad  at  most  conveyed  a  theory 
concerning  the  origin,  composition  and  develop- 
ment of  human  institutions,  were  beginning  to  ex- 
press  the  sense  of  a  great  standing  wrong  suffered 
by  mankind.  As  early  as  the  beginning  of  the 
fourteenth  century,  the  current  language  concerning 
the  birth-state  of  men,  though  visibly  intended  to 
be  identical  with  that  of  Ulpian  and  his  contempo- 
raries has  assumed  an  altogether  different  form  and 
meaning.  The  preamble  to  the  celebrated  ordi- 
nance of  King  Louis  Hutin,  enfranchising  the  serfs 
of  the  royal  domains,  would  have  sounded  strange- 
ly to  Eoman  ears.  "  Whereas,  according  to  natu- 
ral law,  everybody  ought  to  be  born  free ;  and  by 
some  usages  and  customs  which,  from  long  antiqui- 
ty, have  been  introduced  and  kept  until  now  in  our 
realm,  and  peradventure  by  reason  of  the  misdeeds 
of  their  predecessors,  many  persons  of  our  common 
people  have  fallen  into  servitude,  therefore,  We," 
&C  This  is  the  enunciation  not  of  a  legal  rule  but 
of  a  political  dogma  ;  and  from  this  time  the  equali- 
ty of  men  is  spoken  of  by  the  French  lawyers  just 
as  if  it  were  a  political  truth  which  happened  to 
have  been  preserved  among  the  archives  of  their 
science.  Like  all  other  deductions  from  the  hy 
pothesis  of  a  Law  Natural,  and  like  the  belief 
itself  in  a  Law  of  Nature,  it  was  languidly  as 


oiiap.  iv.      DECLARATION  01  INDEPENDENCE. 


91 


sented  to  and  suffered  to  Lave  little  influence  on 
opinion  and  practice  until  it  passed  out  of  the  pos- 
session of  the  lawyers  into  that  of  the  literary  men 
of  the  eighteenth  century  and  of  the  public  which 
sat  at  their  feet.  With  them  it  became  the  most 
distinct  tenet  of  their  creed,  and  was  even  regarded 
as  a  summary  of  all  the  others.  It  is  probable^ 
however,  that  the  power  which  it  ultimately  ac- 
quired over  the  events  of  1789  was  not  entirely 
owing  to  its  popularity  in  France,  for  in  the  middle 
of  the  century  it  passed  over  to  America.  The 
American  lawyers  of  the  time,  and  particularly 
those  of  Virginia,  appear  to  have  possessed  a  stock 
of  knowledge  which  differed  chiefly  from  that  of 
their  English  contemporaries  in  including  much 
which  could  only  have  been  derived  from  the  legal 
literature  of  continental  Europe.  A  very  few 
glances  at  the  writings  of  Jefferson  will  show  how 
strongly  his  mind  was  affected  l.y  the  semi-juridical, 
9emi-popular  opinions  which  were  fashionable  iu 
France,  mid  we  cannot  doubt  that  it  was  sympathy 
w  ith  the  peculiar  ideas  of  the  French  jurists  which 
led  him  and  the  other  colonial  lawyers  who  guided 
the  course  of  events  in  America  to  join  the  specially 
French  assumption  that  "all  men  are  born  equal" 
with  tin- assumption,  more  familiar  to  rmgiishmen, 
that  all  men  are  born  free,  in  the  very  lirst  lines  of 
their  Declaration  of  Independence.  The  passage 
was  one  of  great  importance  to  the  history  of  the 
doctrine  before  us.   The  American  lawyers,  in  thus 


92 


HISTORY  OF  LAW  OF  NATURE. 


CHAP.  IT 


prominently  and  emphatically  affirming  the  fun  da 
mental  equality  of  human  beings,  gave  an  impulse 
to  political  movements  in  their  own  country,  and  in 
a  less  degree  in  Great  Britain,  which  is  far  from 
having  yet  spent  itself ;  but  beside  this  they  re- 
turned the  dogma  they  had  adopted  to  its  home  in 
France,  endowed  with  vastly  greater  energy  and 
enjoying  much  greater  claims  on  general  reception 
and  respect.  Even  the  more  cautious  politicians 
of  the  first  Constituent  Assembly  repeated  Ulpian's 
proposition  as  if  it  at  once  commended  itself  to  the 
instincts  and  intuitions  of  mankind  ;  and  of  all  the 
"  principles  of  1789  "  it  is  the  one  which  has  been 
least  strenuously  assailed,  which  has  most  thor- 
oughly leavened  modern  opinion,  and  which  prom- 
ises to  modify  most  deeply  the  constitution  of  so- 
cieties and  the  politics  of  states. 

The  grandest  function  of  the  Law  of  Nature  was 
discharged  in  giving  birth  to  modern  International 
Law  and  to  the  modern  Law  of  War,  but  this  part 
of  its  effects  must  here  be  dismissed  with  considera- 
tion very  unequal  to  its  importance. 

Among  the  postulates  which  form  the  founda- 
tion of  International  Law,  or  of  so  much  of  it  as  re- 
tains the  figure  which  it  received  from  its  original 
architects,  there  are  two  or  three  of  preeminent  im- 
portance. The  first  of  all  i<  expressed  in  the 
tion  that  there  is  a  determinable  Law  of  Nature. 
Grotius  and  his  successors  took  the  assumption 
directly  from  the  Romans,  but  they  differed  widely 


CHAP.  IV. 


INTERNATIONAL  LAW. 


from  the  Roman  jurisconsults  and  from  each  other 
in  their  ideas  as  to  the  mode  of  determination.  The 
ambition  of  almost  every  Publicist  who  has  flour- 
ished since  the  revival  of  letters  has  been  to  provide 
new  and  more  manageable  definitions  of  Natur* 
and  of  her  law,  and  it  is  indisputable  that  the  con- 
ception in  passing-  through  the  long  series  of  writers 
on  Public  Law  has  gathered  round  it  a  large  accre- 
tion,  consisting  of  fragments  of  ideas  derived  from 
nearly  every  theory  of  ethics  which  has  in  its  turn 
taken  possession  of  the  schools.  Yet  it  is  a  remark- 
able proof  of  the  essentially  historical  character 
of  the  conception  that,  after  all  the  efforts  which 
have  been  made  to  evolve  the  code  of  nature  from 
the  necessary  characteristics  of  the  natural  state,  so 
much  of  the  result  is  just  what  it  would  have  been 
if  men  had  been  satisfied  to  adopt  the  dicta  of  the 
Roman  lawyers  without  questioning  or  reviewing 
them.  Setting  aside  the  Conventional  or  Treaty 
Law  of  Nations,  it  is  surprising  how  large  a  part 
of  the  system  is  made  up  of  pure  Roman  law. 
"Wherever  there  is  a  doctrine  of  the  jurisconsults 
affirmed  by  them  to  be  in  harmony  with  the  Jus 
Gentium,  the  Publicists  have  found  a  reason  for 
borrowing  it,  however  plainly  it  may  bear  the 
marks  <>f  a  distinctively  Roman  origin.  AVe  may 
observe  too  that  the  derivative  theories  are  afflicted 
with  the  weakness  of  the  primary  notion.  In  the 
majority  of  the  Publicists,  the  mode  of  thought  is 
still  M  mixed."    In  studying  these  writers,  the  great 


94 


HISTORY  OF  LAW  OF  NATURE. 


cnAP.  iv. 


difficulty  is  always  to  discover  whether  they  are 
discussing  law  or  morality — whether  the  state  of 
international  relations  they  describe  is  actual  or 
ideal — whether  they  lay  down  that  which  is,  or 
that  which,  in  their  opinion,  ought  to  be. 

The  assumption  that  Natural  Law  is  binding  on 
states  inter  se  is  the  next  in  rank  of  those  which 
underlie  International  Law.  A  series  of  assertions 
<  >r  admissions  of  this  principle  may  be  traced  up  to 
the  very  infancy  of  modern  juridical  science,  and  at 
first  sight  it  seems  a  direct  inference  from  the  teach- 
ing of  the  Romans.  The  civil  condition  of  society 
being  distinguished  from  the  natural  by  the  fact 
that  in  the  first  there  is  a  distinct  author  of  law, 
while  in  the  last  there  is  none,  it  appears  as  if  the 
moment  a  number  of  units  were  acknowledged  to 
obey  no  common  sovereign  or  political  superior 
they  were  thrown  back  on  the  ulterior  behests  of 
the  Law  Natural.  States  are  such  units  ;  (he  hy- 
pothesis of  their  independence  excludes  the  notion 
of  a  common  lawgiver,  and  draws  with  it,  therefore, 
according  to  a  certain  range  of  ideas,  the  notion  of 
subjection  to  the  primeval  order  of  nature.  The 
alternative  is  to  consider  independent  communities 
as  not  related  to  each  other  by  any  law,  but  this 
condition  of  lawlessness  is  exactly  the  vacuum  which 
the  Nature  of  the  jurisconsults  abhorred.  There  is 
certainly  apparent  reason  for  thinking  that  if  the 
mind  of  a  Roman  lawyer  rested  on  any  sphere  from 
which  civil  law  was  banished,  it  would  instantly  fill 


CHAP.  IT. 


INTERNATIONAL  LAW. 


95 


the  void  with  the  ordinances  of  Nature.  It  is  nevei 
safe,  however,  to  assume  that  conclusions,  howevei 
certain  and  immediate  in  our  own  eyes,  were  ac 
tually  drawn  at  any  period  of  history.  No  passage 
has  ever  been  adduced  from  the  remains  of  Romai} 
law  which,  in  my  judgment,  proves  the  jurisconsults 
to  have  believed  natural  law  to  have  obligatory 
Force  between  independent  commonwealths ;  and 
we  cannot  but  see  that  to  citizens  of  the  Roman 
empire,  who  regarded  their  sovereign's  dominions 
as  conterminous  with  civilization,  the  equal  subjec- 
tion of  states  to  the  Law  of  Nature,  if  contemplated 
at  all,  must  have  seemed  at  most  an  extreme  result 
of  curious  speculation.  The  truth  appears  to  be 
that  modern  International  Law,  undoubted  as  is  its 
descent  from  Roman  law,  is  only  connected  with  it 
by  an  irregular  .filiation.  The  early  modern  inter- 
preters of  the  jurisprudence  of  Rome,  misconceiving 
the  meaning  of  Jus  Gentium,  assumed  without  hesi 
tat i<>ii  that  the  Romans  had  bequeathed  to  them  a 
System  of  rules  for  the  adjustment  of  international 
transactions.  This  "Law  of  Nations"  was  at  tirst 
an  authority  which  had  formidable  competitors  to 
strive  with,  and  the  condition  of  Europe  was  long 
such  as  to  preclude  its  universal  reception.  Grad- 
ually, however,  the  western  world  arranged  itself 
in  a  form  more  favourable  to  the  theory  of  the 
civilians;  circumstances  destroyed  the  credit  of 
rival  doctiines;  and  at  last,  at  a  peculiarly  felici- 
tous conjuncture,  Ayala  ami  Grotius  were-  able  to 


96  HISTORY  OF  LAW  OF  NATURE.         chap,  iv 

obtain  for  it  the  enthusiastic  assent  of  Europe,  an 
assent  which  has  been  over  and  over  again  renewed 
in  every  variety  of  solemn  engagement.  The  great 
men  to  whom  its  triumph  is  chiefly  owing  attempt- 
ed, it  need  scarcely  be  said,  to  place  it  on  an  entire- 
ly new  basis,  and  it  is  unquestionable  that  in  the 
course  of  this  displacement  they  altered  much  of  its 
structure,  though  far  less  of  it  than  is  commonly 
supposed.  Having  adopted  from  the  Antonine 
jurisconsults  the  position  that  the  Jus  Gentium 
and  the  Jus  Naturae  were  identical,  Grotius,  with 
his  immediate  predecessors  and  his  immediate  suc- 
cessors, attributed  to  the  Law  of  Nature  an  author- 
ity which  would  never  perhaps  have  been  claimed 
for  it,  if  "  Law  of  Nations  "  had  not  in  that  asre 
been  an  ambiguous  expression.  They  laid  down 
unreservedly  that  Natural  Law  is  the  code  of  states, 
and  thus  put  in  operation  a  process  which  has  con- 
tinued almost  down  to  our  own  day,  the  process  of 
engrafting  on  the  international  system  rules  which 
are  supposed  to  have  been  evolved  from  the  unas- 
sisted contemplation  of  the  conception  of  Nature. 
There  is  too  one  consequence  of  immense  practical 
importance  to  mankind  which,  though  not  unknown 
during  the  early  modern  history  of  Europe,  was 
never  clearly  or  universally  acknowledged  till  the 
doctrines  of  the  Grotian  school  had  prevailed.  If 
the  society  of  nations  is  governed  by  Natural  Law, 
the  atoms  which  compose  it  must  be  absolutely 
equal.    Men  under  the  sceptre  of  Nature  are  all 


OHAP.  IV. 


INTERNATIONAL  LAW. 


9? 


equal,  and  accordingly  commonwealths  are  equal  if 
the  international  state  be  one  of  nature.  The  pro- 
position that  independent  communities,  however 
different  in  size  and  power,  are  all  equal  in  the 
view  of  the  law  of  nations,  has  largely  contributed, 
to  the  hapjnness  of  mankind,  though  it  is  constantly 
threatened  by  the  political  tendencies  of  each  suc- 
cessive age.  It  is  a  doctrine  which  probably  would 
never  have  obtained  a  secure  footing  at  all  if  Inter- 
national Law  had  not  been  entirely  derived  from 
the  majestic  claims  of  Nature  by  the  Publicists  who 
wrote  after  the  revival  of  letters. 

On  the  whole,  however,  it  is  astonishing,  as  I 
have  observed  before,  how  small  a  proportion  the 
additions  made  to  International  Law  since  Grotius's 
day  bear  to  the  ingredients  which  have  been  simply 
taken  from  the  most  ancient  stratum  of  the  Roman 
Jus  Gentium.  Acquisition  of  territory  has  always 
been  the  great  spur  of  national  ambition,  and  the 
rules  which  govern  this  acquisition,  together  with 
the  rules  which  moderate  the  wars  in  which  it  too 
frequently  results,  are  merely  transcribed  from  the 
part  of  the  Koman  law  which  treats  of  the  modes 
of  acquiring  property  jwre  gentium.  These  modes 
of  acquisition  were  obtained  by  the  elder  juriscon- 
sults, as  I  have  attempted  to  explain,  by  abstract- 
ing a  common  ingredient  from  the  usages  observed 
t<<  prevail  among  the  various  tribes  surroundim' 
Rome  ;  and,  having  been  classed  on  account  of  their 
origin  in  the  "law  common  to  all  nations,''  they 
7 


98 


HISTORY  OF  LAW  OF  NATURE. 


were  thought  by  the  later  lawyers  to  fit  in,  on  the 
score  of  their  simplicity,  with  the  more  recent  con- 
ception  of  a  Law  Natural.    They  thus  made  fcheii 
way  into  the  modern  Law  of  Nations,  and  the  re- 
sult is  that  those  parts  of  the  international  system 
which  refer  to  dominion,  its  nature,  its  limitations, 
the  modes  of  acquiring  and.  securing  it,  are  pure 
Roman  Property  Law— so  much,  that  is  to  say,  of 
the  Roman  Law  of  Property  as  the  Antonine  juris- 
consults imagined  .  to  exhibit  a  certain  congruity 
with  the  natural  state.    In  order  that  these  chap- 
ters of  International  Law  may  be  capable  of  appli- 
cation, it  is  necessary  that  sovereigns  should  be  re- 
lated to  each  other  like  the  members  of  a  group  of 
Roman  proprietors.    This  is  another  of  the  postu- 
lates which  lie  at  the  threshold  of  the  International 
Code,  and  it  is  also  one  which  could  not  possibly 
have  been  subscribed  to  during  the  first  centuries 
of  modem  European  history.    It  is  resolvable  int( 
the  double  proposition  that  "  sovereignty  is  terri 
torial,"  i.e.  that  it  is  always  associated  with  the 
proprietorship  of  a  limited  portion  of  the  earth's 
surface,  and  that  "sovereigns  inter  se  are  to  be 
deemed  not  paramount,  but  ahsoluU  owners  of  the 
state's  territory. 

Many  contemporary  writers  on  Internationl  Law 
tacitly  assume  that  the  doctrines  of  their  system, 
founded  on  principles  of  equity  and  common  sense, 
were  capable  of  being  readily  reasoned  out  in  every 
stage  of  modern  civilisation.    But  this  assumption, 


CHAP.  rv. 


INTERNATIONAL  LAW. 


90 


while  it  conceals  some  real  defects  of  the  inter- 
national theory,  is  altogether  untenable  so  far  as 
regards  a  large  part  of  modern  history.  It  is  not 
true  that  the  authority  of  the  Jus  Gentium  in  the 
concerns  of  nations  was  always  uncontradicted  ;  on 
the  contrary,  it  had  to  struggle  long  against  the 
claims  of  several  competing  systems.  It  is  again 
not  true  that  the  territorial  character  of  sovereignty 
was  always  recognised,  for  long  after  the  dissolution 
of  the  Roman  dominion  the  minds  of  men  were 
under  the  empire  of  ideas  irreconcileaLle  with  such 
a  conception.  An  old  order  of  things,  and  of  views 
founded  on  it,  had  to  decay — a  new  Europe,  and 
an  apparatus  of  new  notions  congenial  to  it,  had  to 
spring  up — before  two  of  the  chiefest  postulates 
of  International  Law  could  he  universally  con- 
ceded. 

It  is  a  consideration  well  worthy  to  be  kept  in 
view,  that  during  a  large  part  of  what  we  usually 
term  modern  history  no  such  conception  was  enter- 
tained as  that  of  "territorial  sovereignty.'1''  Sove- 
reignty was  not  associated  with  dominion  over  a 
portion  or  subdivision  of  the  earth.  The  world  had 
lain  for  so  many  centuries  under  the  shadow  of 
Imperial  Home  as  to  have  forgotten  that  distribu- 
tion of  the  vast  spaces  comprised  in  the  empire 
whic  h  had  once  parcelled  them  out  into  a  number 
of  independent  commonwealths,  claiming  immunity 
from  extrinsic  interference,  and  pretending  to  equal- 
ity of  national  rights.    After  the  subsidence  of  the 


100 


HISTORY  OF  LAW  OF  NATURE. 


OIIAP.  IV. 


barbarian  irruptions,  the  notion  of  sovereignty  that, 
prevailed  seems  to  have  been  twofold.  On  the  one 
hand  it  assumed  the  form  of  what  may  be  called 
"  ^'/^-sovereignty."  The  Franks,  the  Burgundians, 
the  Vandals,  the  Lombards,  and  Visigoths  were 
masters,  of  course,  of  the  territories  which  they 
occupied,  and  to  which  some  of  them  had  given  a 
geographical  appellation  ;  but  they  based  no  claim 
of  right  upon  the  fact  of  territorial  possession,  and 
indeed  attached  no  importance  to  it  whatever. 
They  appear  to  have  retained  the  traditions  which 
they  brought  with  them  from  the  forest  and  the 
steppe,  and  to  have  still  been  in  their  own  view  a 
patriarchal  society,  a  nomad  horde,  merely  encamp- 
ed for  the  time  upon  the  soil  which  afforded  them 
sustenance.  Part  of  Transalpine  Gaul,  with  part  of 
Germany,  had  now  become  the  country  de  facto  oc- 
cupied by  the  Franks — it  was  France  ;  but  the  Mero- 
vingian line  of  chieftains,  the  descendants  of  Clovis, 
were  not  Kings  of  France,  they  were  Kings  of  the 
Franks.  Territorial  titles  were  not  unknown,  but 
they  seem  at  first  to  have  come  into  use  only  as  a 
convenient  mode  of  designating  the  ruler  of  ^por- 
tion of  the  tribe's  possessions;  the  king  of  a  whole 
tribe  was  king  of  his  people,  not  of  his  people's 
lands.  The  alternative  to  this  peculiar  notion  of 
Bovereignty  appeals  to  have  been— and  this  is  the 
important  point- — the  idea  of  universal  dominion, 
When  a  monarch  departed  from  the  special  relation 
of  chief  to  clansmen,  and  became  solicitous,  for  pur- 


ohap.  jv.  TERRITORIAL  SOVEREIGNTY. 


101 


poses  of  his  own,  to  invest  himself  with  a  novel 
form  of  sovereignty,  the  precedent  which  suggested 
itself  for  his  adoption  was  the  domination  of  the 
Emperors  of  Rome.  To  parody  a  common  quota- 
tion, he  became  "  aid  Caemr  aut  nidlus."  Either  he 
pretended  to  the  full  prerogative  of  the  Byzantine 
Emperor,  or  he  had  no  political  status.  In  our  own 
age,  when  a  new  dynasty  is  desirous  of  obliterating 
the  prescriptive  title  of  a  deposed  line  of  sovereigns, 
it  takes  its  designation  from  the  people,  instead  of 
the  territory.  Thus  we  have  Emperors  and  Kings  of 
the  French,  and  a  King  of  the  Belgians.  At  the  pe- 
riod of  which  we  have  been  speaking,  under  similar 
circumstances,  a  different  alternative  presented  itself. 
The  chieftain  who  would  no  longer  call  himself 
Kiug  of  the  tribe  must  claim  to  be  Emperor  of  the 
world.  Thus,  when  the  hereditary  Mayors  of  the 
Palace  had  ceased  to  compromise  with  the  mon- 
archa  they  had  long  since  virtually  dethroned,  they 
soon  became  unwilling  to  call  themselves  merely 
Kings  of  the  Franks,  a  title  which  belonged  to  the 
displaced  Merovings ;  but  they  could  not  style 
themselves  Kings  of  France,  for  such  a  designation, 
though  apparently  not  unknown,  was  not  a  title 
of  dignity.  Accordingly  they  came  forward  as 
aspirants  to  universal  empire.  Their  motive  has 
l>eei!  greatly  misapprehended.  It  has  been  taken 
for  granted  by  recent  French  writers  that  Charle- 
magne was  far  before  his  age,  quite  as  much  in  the 
character  of  his  designs  as  in  the  energy  with 


102  HISTORY  OF  LAW  OF  NATURE,         chap,  rv 

which  lie  prosecuted  them.  Whether  it  be  true  01 
not  that  anybody  is  at  any  time  before  his  age,  it 
is  certainly  true  that  Charlemagne,  in  aiming  at 'an 
unlimited  dominion,  was  emphatically  taking  the 
only  course  which  the  characteristic  idea  of  hfs  acre 
permitted  him  to  follow.  Of  his  intellectual  emi- 
nence there  cannot  be  a  question,  but  it  is  proved 
by  his  acts  and  not  by  his  theory. 

The  speculative  universality  of  sovereignty 
long  continued  to  be  associated  with  the  Imperial 
throne,  and  indeed  was  never  thoroughly  disso- 
ciated from  it  so  long  as  the  empire  of  Germany 
lasted.    Territorial  sovereignty— the  view  which 
connects  sovereignty  with  the  possession  of  a  lim- 
ited portion  of  the  earth's  surface— was  distinctly 
an  offshoot,  though  a  tardy  one,  of  feudalistk 
This  might  have  been  expected  a  priori,  for  it  was 
feudalism  which  for  the  first  time  linked  personal 
duties,  and  by  consequence  personal  rights,  to  the 
ownership  of  land.    Whatever  be  the  proper  view 
of  its  origin  and  legal  nature,  the  best  mode  of 
vividly  picturing  to  ourselves  the  feudal  organisa- 
tion is  to  begin  with  the  basis  ;  to  consider  the 
relation  of  the  tenant  to  the  patch  of  soil  which 
created  and  limited  his  services— and  then  to 
mount  up,  through  narrowing  circles  of  super- 
feudation,  till  we  approximate  to  the  apex  of  the 
system.    Where  that  summit  exactly  was  during 
the  later  portion  of  the  dark  ages  it  is  not  easy  to 
decide.    Probably,  wherever  the  conception  of  tribe 
sovereignty  has  really  decayed,  the  topmost  point 


cn.vr.  iv. 


TERRITORIAL  SOVEREIGNTY. 


103 


was  always  assigned  to  the  supposed  successor  of 
the  Caesars  of  the  West.  But  before  long,  when 
the  actual  sphere  of  imperial  authority  had  im- 
mensely contracted,  and  when  the  emperors  had 
concentrated  the  scanty  remains  of  their  power 
upon  Germany  and  North  Italy,  the  highest  feudal 
superiors  in  all  the  outlying  portions  of  the  former 
Carlovingian  empire  found  themselves  practically 
without  a  supreme  head.  Gradually  they  habit- 
uated themselves  to  the  new  situation,  and  the  fact 
of  immunity  put  at  last  out  of  sight  the  theory  of 
dependence ;  but  there  are  many  symptoms  that 
this  change  was  not  quite  easily  accomplished; 
and,  indeed,  to  the  impression  that  in  the  nature 
of  things  there  must  necessarily  be  a  culminating 
domination  somewhere,  Ave  may,  no  doubt,  refer 
the  increasing  tendency  to  attribute  secular  supe- 
riority to  the  See  of  Rome.  The  completion  of  the 
first  stage  in  the  revolution  of  opinion  is  marked, 
of  course,  by  the  accession  of  the  Capetian  dynasty 
in  France.  Before  that  epoch  arrived,  several  of 
the  holders  of  the  great  territorial  fiefs  into  which 
the  Carlovingian  empire  was  now  split  up,  had 
begun  to  call  themselves  Kings,  instead  of  Dukes 
or  Counts ;  but  the  important  change  occurred 
when  the  feudal  prince  of  a  limited  territory  sur- 
rounding Paiis,  usurped  from  the  earlier  house 
their  dynastic  title,  kliujx  of  the  French.  Ungues 
Capet  and  his  descendants  were  kings  in  quite  a 
new  sense,  sovereigns  standing  in  the  same  relation 
to  the  soil  of  France  as  the  baron  to  his  estate,  the 


104  HISTORY  OF  LAW  OF  NATURE.         chap.  iv. 

tenant  to  his  freehold  ;  and  the  old  tribal  appella- 
tion, though  long  retained  in  the  official  Latin 
style  of  the  reigning  house,  passed  rapidly,  in  the 
vernacular,  into  Kings  of  France.  The  form  of 
the  monarchy  in  France  had  visible  effects  in  has 
tening  changes  which  were  elsewhere  proceeding 
in  the  same  direction.  The  kingship  of  our  Anglo 
Saxon  regal  houses  was  midway  between  the  chief- 
tainship of  a  tribe  and  a  territorial  supremacy ; 
but  the  superiority  of  the  Norman  monarchs,  imi- 
tated from  that  of  the  King  of  France,  was  dis- 
tinctly a  territorial  sovereignty.  Every  subsequent 
dominion  which  was  established  or  consolidated 
was  formed  on  the  latter  model.  Spain,  Naples, 
and  the  principalities  founded  on  the  ruins  of 
municipal  freedom  in  Italy,  were  all  under  rulers 
whose  sovereignty  was  territorial.  Few  things,  I 
may  add,  are  more  curious  than  the  gradual  lapse 
of  the  Venetians  from  one  view  to  the  other.  At 
the  commencement  of  its  foreign  conquests,  the  re- 
public regarded  itself  as  an  antitype  of  the  Roman 
commonwealth,  governing  a  number  of  subject 
provinces.  Move  a  century  onwards,  and  you  find 
that  it  wishes  to  be  looked  upon  as  a  corporate 
sovereign,  claiming  the  rights  of  a  feudal  suzerain 
over  its  possessions  in  Italy  and  the  ^Egean. 

During  the  period  through  which  the  popular 
ideas  on  the  subject  of  sovereignty  were  under- 
going this  remarkable  change,  the  system  which 
stood  in  the  place  of  what  we  now  call  Interna- 
tional Law  was  heterogeneous  in  form  and  incon- 


chat.  rv. 


IXTERXATIOXAL  LAW. 


105 


sistent  in  the  principles  to  which  it  appealed. 
Over  so  much  of  Europe  as  was  comprised  in  the 
Romano-German  empire,  the  connection  of  the  con- 
federate states  was  regulated  by  the  complex  and 
as  yet  incomplete  mechanism  of  the  Imperial  con 
stitution;  and,  surprising  as  it  may  seem  to  us,  it 
was  a  favorite  notion  of  German  lawyers  that  the 
relations  of  commonwealths,  whether  inside  or  out- 
side the  empire,  ought  to  be  regulated  not  by  the 
Jus  Gentium,  but  by  the  pure  Roman  jurispru- 
dence, of  which  CsBSar  was  still  the  centre.  This 
doctrine  was  less  confidently  repudiated  in  the 
outlying  countries  than  we  might  have  supposed 
antecedently  ;  but  substantially,  through  the  rest 
of  Europe  feudal  subordinations  furnished  a  sub- 
stitute for  a  public  law ;  and  when  those  were 
undetermined  or  ambiguous,  there  lay  behind,  in 
theory  at  least,  a  supreme  regulating  force  in  the 
authority  of  the  head  of  the  Church.  It  is  certain, 
however,  that  both  feudal  and  ecclesiastical  influ- 
ences were  rapidly  decaying  during  the  fifteenth, 
and  oven  the  fourteenth  century  ;  and  if  we  closely 
examine  the  current  pretexts  of  wars,  and  the 
avowed  motives  of  alliances,  it  will  be  seen  that, 
step  b)  step  with  the  displacement  of  the  old  prin- 
ciples, the  views  afterwards  harmonized  and  con- 
solidated by  Ayala  and  Grotius  were  making  con- 
siderable progress,  though  it  was  silent  and  but 
slow.  Whether  the  fusion  of  all  the  sources  of 
authority  would  ultimately  have  evolved  a  system 
of  international  relations,  and  whether  that  system 


106  HISTORY  OF  LAW  OF  NATURE.         chap.  iv. 

would  have  exhibited  material  differences  from  the 
fabric  of  Grotius,  is  not  now  possible  to  decide,  for 
as  a  matter  of  fact  the  Reformation  annihilated  all 
its  potential  elements  except  one.  Beginning  in 
Germany,  it  divided  the  princes  of  the  empire  by 
a  gulf  too  broad  to  be  bridged  over  by  the  Imperial 
supremacy,  even  if  the  Imperial  superior  had  stood 
neutral.  He,  however,  was  forced  to  take  colour 
with  the  church  against  the  reformers;  the  Pope 
was,  as  a  matter  of  course,  in  the  same  predica- 
ment; and  thus  the  two  authorities  to  whom  be- 
longed the  office  of  mediation  between  combatants 
became  themselves  the  chiefs  of  one  great  fac- 
tion in  the  schism  of  the  nations.  Feudalism, 
already  enfeebled  and  discredited  as  a  principle 
of  public  relations,  furnished  no  bond  whatever 
which  was  stable  enough  to  countervail  the  alli- 
ances of  religion.  In  a  condition,  therefore,  of 
public  law  which  was  little  less  than  chaotic,  those 
views  of  a  state  system  to  which  the  Roman  juris- 
consults were  supposed  to  have  given  their  sanction, 
alone  remained  standing.  The  shape,  the  symme- 
try, and  the  prominence  which  they  assumed  in  the 
hands  of  Grotius  are  known  to  every  educated 
man;  but  the  great  marvel  of  the  Treatise  "De 
Jure  Belli  et  Pacis,"  was  its  rapid,  complete,  and 
universal  success.  The  horrors  of  the  Thirty  Years' 
War,  the  boundless  terror  and  pity  which  the  un- 
bridled license  of  the  soldiery  was  exciting,  must, 
no  doubt,  be  taken  to  explain  that  success  in  some 
measure,  but  they  do  not  wholly  account  for  it. 


CHAP.  IV. 


GROTIUS. 


*07 


Very  little  penetration  into  the  ideas  of  that  age 
is  required  to  convince  one  that,  if  the  ground  plan 
of  the  international  edifice  which  was  sketched  in 
the  great  book  of  Grotius  had  not  appeared  to 
be  theoretically  perfect,  it  would  have  been  dis- 
carded by  jurists  and  neglected  by  statesmen  and 
soldiers. 

It  is  obvious  that  the  speculative  perfection  of 
the  Grotian  system  is  intimately  connected  with 
that  conception  of  territorial  sovereignty  which  we 
have  been  discussing.  The  theory  of  International 
Law  assumes  that  commonwealths  are,  relatively 
to  each  other,  in  a  state  of  nature ;  but  the  compo- 
nent atoms  of  a  natural  society  must,  by  the  fun- 
damental assumption,  be  insulated  and  independent 
of  each  other.  If  there  be  a  higher  power  con- 
necting them,  however  slightly  and  occasionally, 
by  the  claim  of  common  supremacy,  the  very  con- 
ception <>f  a  common  superior  introduces  the  notion 
of  positive  law  and  excludes  the  idea  of  a  law 
natural;  It  follows,  therefore,  that  if  the  universal 
suzerainty  of  an  Imperial  head  had  been  admitted 
even  in  bare  theory,  the  labours  of  Grotius  would 
have  been  idle.  Nor  is  this  the  only  point  of 
junction  between  modern  public  law  and  those 
view  s  of  sovereignty  of  which  I  have  endeavored 
to  describe  the  development.  I  have  said  that 
there  are  entire  departments  of  international  juris- 
prudence which  consist  of  the  Roman  Law  of  Prop- 
erty.  What  then  is  the  inference?  It  is,  that  if 
there  had  been  no  such  change  as  I  have  described 


108 


HISTORY  OF  LAW  OF  NATURE.         chap.  rv. 


in  the  estimate  of  sovereignty — if  sovereignty  had 
not  been  associated  with  the  proprietorship  of  a 
limited  portion  of  the  earth,  had  not,  in  other 
words,  become  territorial— three  parts  of  the  Gro- 
tian  theory  would  have  been  incapable  of  appli 
cation. 


CHxVPTER  V. 


PRIMITIVE  SOCIETY  AND  ANCIENT  LAW. 


Tile  necessity  of  submitting  the  subject  of  jurispru- 
dence to  scientific  treatment  has  never  been  entirely 
lost  sight  of  in  modern  times,  and  the  essays  which 
the  consciousness  of  this  necessity  has  produced  have 
proceeded  from  minds  of  very  various  calibre,  but 
there  is  not  much  presumption,  I  think,  in  asserting 
that  what  has  hitherto  stood  in  the  place  of  a  sci- 
ence has  for  the  most  part  been  a  set  of  guesses, 
those  very  guesses  of  the  Roman  lawyers  which  were 
examined  in  the  two  preceding  chapters.  A  series 
of  explicit  statements,  recognising  and  adopting  these 
conjectural  theories  of  a  natural  state,  and  of  a  sys- 
tem of  principles  congenial  to  it,  has  been  continued 
with  but  brief  interruption  from  the  days  of  their 
iuveutors  to  our  own.  They  appear  in  the  annota- 
tions of  the  Glossators  who  founded  modern  juris- 
prudence, and  in  the  writings  of  the  scholastic  jurists 
who  succeeded  them.  They  are  visible  in  the  dog- 
mas of  the  canonists.    They  are  thrust  into  promi 


110     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    ciiap.  v. 

nence  by  those  civilians  of  marvellous  erudition,  who 
flourished  at  the  revival  of  ancient  letters.  Grotius 
and  his  successors  invested  them  not  less  with  bril- 
liancy and  plausibility  than  with  practical  import- 
ance. They  may  be  read  in  the  introductory  chap- 
ters of  our  own  Blackstone,  who  has  transcribed 
them  textually  from  Burlamaqui,  and  wherever  the 
manuals  published  in  the  present  day  for  the  guid- 
ance of  the  student  or  the  practitioner  begin  with 
any  discussion  of  the  first  principles  of  law,  it  al- 
ways resolves  itself  into  a  restatement  of  the  Roman 
hypothesis.  It  is  however  from  the  disguises  with 
which  these  conjectures  sometimes  clothe  them- 
selves, quite  as  much  as  from  their  native  form, 
that  we  gain  an  adequate  idea  of  the  subtlety  with 
which  they  mix  themselves  in  human  thought.  The 
Loekeian  theory  of  the  origin  of  Law  in  a  Social 
Compact  scarcely  conceals  its  Roman  derivation, 
and  indeed  is  only  the  dress  by  which  the  ancient 
views  were  rendered  more  attractive  to  a  particular 
generation  of  the  moderns;  but  on  the  other  hand 
the  theory  of  Hobbes  on  the  same  subject  was  pur- 
posely  devised  to  repudiate  the  reality  of  a  law  of 
nature  as  conceived  by  the  Romans  and  their  disci- 
ples. Yet  these  two  theories,  which  long  divided 
the  reflecting  politicians  of  England  into  hostile 
camps,  resemble  each  other  strictly  in  their  funda- 
mental assumption  of  a  non-historic,  unverifiable, 
condition  of  the  race.  Their  authors  differed  as  to 
the  characteristics  of  the  pra>social  state,  and  as  to 


CHAP.  V. 


MONTESQUIEU. 


Ill 


the  nature  of  the  abnormal  action  by  which  men 
lifted  themselves  out  of  it  into  that  social  orjxanisa- 
tion  with  which  alone  we  are  acquainted,  but  they 
agreed  in  thinking  that  a  great  chasm  separated 
man  in  his  primitive  condition  from  man  in  society 
and  this  notion  we  cannot  doubt  that  they  borrowed, 
consciously  or  unconsciously,  from  the  Romans.  If 
indeed  the  phenomena  of  law  be  regarded  in  the  way 
in  which  these  theorists  regarded  them — that  is,  as 
one  vast  complex  whole — it  is  not  surprising  that 
the  mind  should  often  evade  the  task  it  has  set  to 
itself  by  falling  back  on  some  ingenious  conjecture 
which  (plausibly  interpreted)  will  seem  to  reconcile 
everything,  or  else  that  it  should  sometimes  abjure 
in  despair  the  labour  of  systematization. 

From  the  theories  of  jurisprudence  which  have 
the  same  speculative  basis  as  the  Roman  doctrine 
two  of  much  celebrity  must  be  excepted.  The  first 
of  them  is  that  associated  with  the  great  name  of 
Montesquieu.  Though  there  are  some  ambiguous 
expressions  in  the  early  part  of  the  Esprit  de*  Lot  s-, 
which  seem  to  show  its  writer's  unwillingness  to 
break  quite  openly  with  the  views  hitherto  popu- 
lar, the  general  drift  of  the  book  is  certainly  to  in- 
dicate a  very  different  conception  of  its  subject  from 
any  which  had  been  entertained  before.  It  lias  often 
been  noticed  that,  amidst  the  vast  variety  of  exam- 
ples which,  in  its  immense  width  of  survey,  it 
sweeps  together  from  supposed  systems  of  jurispru- 
dence! there  is  an  evident  anxiety  to  thrust  into 


112     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap.  7 


especial  prominence  those  manners  and  institutions 
which  astonish  the  civilized  reader  by  their  uncouth- 
ness,  strangeness,  or  indecency.  The  inference  con- 
stantly suggested  is,  that  laws  are  the  creatures  of 
climate,  local  situation,  accident,  or  imposture — the 
fruit  of  any  causes  except  those  which  appear  to 
operate  with  tolerable  constancy.  Montesquieu 
seems,  in  fact,  to  have  looted  on  the  nature  of  man 
as  entirely  plastic,  as  passively  reproducing  the  im- 
pressions, and  submitting  implicitly  to  the  impulses, 
which  it  receives  from  without.  And  here  no 
doubt  lies  the  error  which  vitiates  his  system  as  a 
system.  He  greatly  underrates  the  stability  of  hu- 
man nature.  He  pays  little  or  no  regard  to  the 
inherited  qualities  of  the  race,  those  qualities  which 
each  generation  receives  from  its  predecessors,  and 
transmits  but  slightly  altered  to  the  generation 
which  follows  it.  It  is  quite  true,  indeed,  that,  no 
complete  account  can  be  given  of  social  phenomena, 
and  consequently  of  laws,  till  due  allowance  lias 
been  made  for  those  modifying  causes  whic  h  are  no- 
ticed in  the  Esprit  des  Lois;  but  their  number  and 
their  force  appear  to  have  been  overestimated  l>y 
Montesquieu.  Many  of  the  anomalies  which  he 
parades  have  since  been  shown  to  rest  on  false  re- 
ports or  erroneous  construction,  and  of  those  which 
remain  not  a  few  prove  the  permanence  rather  than 
the  variableness  of  man's  nature,  since  they  are 
relics  of  older  stages  of  the  race  which  have  obsti« 
[lately  defied  the  influences  that  have  elsewhere  had 


chap.  t.         MONTESQUIEU  AND  BENTHAM.  113 

effect.  The  trutli  is  that  the  stable  part  of  our 
mental,  moral,  and  physical  constitution  is  the 
largest  part  of  it,  and  the  resistance  it  opposes  to 
change  is  such  that,  though  the  variations  of  human 
society  in  a  portion  of  the  world  are  plain  enough, 
they  are  neither  so  rapid  nor  so  extensive  that  their 
amount,  character,  and  general  direction  cannot  be 
ascertained.  Approximation  to  truth  may  be  all 
that  is  attainable  with  our  present  knowledge,  but 
there  is  no  reason  for  thinking  that  this  is  so  re- 
mote, or  (what  is  the  same  thing)  that  it  requires 
so  much  future  correction,  as  to  be  entirely  useless 
and  unins tractive. 

The  other  theory  which  has  been  adverted  to  is, 
the  historical  theory  of  Bentham.  This  theory 
which  is  obscurely  (and,  it  might  even  be  said, 
timidly)  propounded  in  several  parts  of  Bentham's 
works  is  quite  distinct  from  that  analysis  of  the  con- 
ception of  law  which  he  commenced  in  the  "  Frag- 
ment on  Government,"  and  which  was  more  recently 
completed  by  Mr.  John  Austin.  The  resolution  of 
a  law  iuto  a  command  of  a  particular  nature,  im- 
posed under  special  conditions,  does  not  affect  to 
do  more  than  protect  us  against  a  difficulty — a  most 
formidable  one  certainly-  -of  language.  The  whole 
question  remains  open  as  to  the  motives  of  societies 
in  imposing  these  commands  on  themselves,  as  to 
*:he  connexion  of  these  commands  with  each  other, 
and  the  nature  of  their  dependence  on  those  which 
preceded  t hem,  and  which  they  have  superseded 

8 


114     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap.  v. 


Bentham  suggests  the  answer  that  societies  modify, 
and  have  always  modified,  their  laws  according  to 
modifications  of  their  views  of  general  expediency. 
It  is  difficult  to  say  that  this  proposition  is  false, 
but  it  certainly  appears  to  be  unfruitful.  For  that 
which  seems  expedient  to  a  society,  or  rather  to  the 
governing  part  of  it,  when  it  alters  a  rule  of  law  is 
surely  the  same  thing  as  the  object,  whatever  it 
may  be,  which  it  has  in  view  when  it  makes  the 
change.  Expediency  and  the  greatest  good  are 
nothing  more  than  different  names  for  the  impulse 
which  prompts  the  modification ;  and  when  we  lay 
down  expediency  as  the  rule  of  change  in  law  or 
opinion,  all  we  get  by  the  proposition  is  the  substi- 
tution of  an  express  term  for  a  term  which  is  neces- 
sarily implied  when  we  say  that  a  change  takes 
place. 

There  is  such  wide-spread  dissatisfaction  with 
existing  theories  of  jurisprudence,  and  so  general  a 
conviction  that  they  do  not  really  solve  the  ques- 
tions they  pretend  to  dispose  of,  as  to  justify  the 
suspicion  that  some  line  of  inquiry,  necessary  to  a 
perfect  result,  has  been  incompletely  followed  or 
altogether  omitted  by  their  authors.  And  indeed 
there  is  one  remarkable  omission  with  which  all 
these  speculations  are  chargeable,  except  perhaps 
those  of  Montesquieu.  They  take  no  account  of 
what  law  has  actually  been  at  epochs  remote  from 
the  particular  period  at  which  they  made  their  ap- 
pearance.   Their  originator  carefully  observed  the 


OTTAP.  V. 


PROPER  MODE  OF  INQUIRY. 


115 


institutions  of  their  own  a^e  and  civilisation,  and 
those  of  other  ages  and  civilisations  with  which  they 
had  some  degree  of  intellectual  sympathy,  but, 
when  they  turned  their  attention  to  archaic  states 
of  society  which  exhibited  much  superficial  differ- 
ence from  their  own,  they  uniformly  ceased  to  ob- 
serve aud  began  guessing.  The  mistake  which 
they  committed  is  therefore  analogous  to  the  error 
of  one  who,  in  investigating  the  laws  of  the  ma- 
terial universe,  should  commence  by  contemplating 
the  existing  physical  world  as  a  whole,  instead  of 
beginning  with  the  particles  which  are  its  simplest 
ingredients.  One  does  not  certainly  see  why  such 
a  scientific  solecism  should  be  more  defensible  in 
jurisprudence  than  in  any  other  region  of  thought. 
It  would  seem  antecedently  that  we  ought  to  com- 
mence with  the  simplest  social  forms  in  a  state  as 
near  as  possible  to  their  rudimentary  condition.  In 
other  words,  if  we  followed  the  course  usual  in  such 
inquiries,  we  should  penetrate  as  far  up  as  we  could 
in  the  history  of  primitive  societies.  The  phe- 
nonien;i  which  early  societies  present  us  with  are 
not  easy  at  first  to  understand,  but  the  difficult]  of 
grappling  with  them  bears  no  proportion  to  the 
perplexities  which  beset  us  in  considering  the  baf- 
fling entanglement  of  modem  social  organisation. 
It  is  a  difficulty  arising  from  their  strangeness  and 
uncouthness,  not  from  their  number  and  complex- 
ity. One  does  not  readily  get  over  the  surprise 
which  they  occasion  when  looked  at  from  a  modern 


CrTAP.  T 


116     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW. 

point  of  view ;  but  when  that  is  surmounted  they 
are  few  enough  and  simple  enough.  But,  even  if 
they  gave  more  trouble  than  they  do,  no  pains 
would  be  wasted  in  ascertaining  the  germs  out  of 
which  has  assuredly  been  unfolded  every  form  of 
moral  restraint  which  controls  our  actions  and 
shapes  our  conduct  at  the  present  moment. 

The  rudiments  of  the  social  state,  so  far  as  they 
are  known  to  us  at  all,  are  known  through  testi 
mony  of  three  sorts— accounts  by  contemporary 
observers  of  civilisation  less  advanced  than  their 
own,  the  records  which  particular  races  have  pre- 
served concerning  their  primitive  history,  and  an- 
cient law.    The  first  kind  of  evidence  is  the  best 
we  could  have  expected.    As  societies  do  not  ad- 
vance concurrently,  but  at  different  rates  of  prog- 
ress, there  have  been  epochs  at  which  men  trained 
to  habits  of  methodical  observation  have  really  been 
in  a  position  to  watch  and  describe  the  infancy  of 
mankind.    Tacitus  made  the  most  of  such  an  op- 
portunity;  but  the  Germany,  unlike  most  cele- 
brated classical  books,  has  not  induced  others  to 
follow  the  excellent  example  set  by  its  author,  and 
the  amount  of  this  sort  of  testimony  which  we  pos- 
sess is  exceedingly  small.     The  lofty  contempt 
which  a  civilised  people  entertains  for  barbarous 
neighbours  has  caused  a  remarkable  negligence  in 
observing  them,  and  this  carelessness  has  been  ag- 
gravated  at  times  by  fear,  by  religious  prejudice, 
and  even  by  the  use  of  these  very  terms— civilisa- 


CHAP.  V. 


THE  GERMANY  OF  TACITUS. 


117 


tion  and  barbarism — which  convey  to  most  jjersons 
tlie  impression  of  a  difference  not  merely  in  degree 
but  in  kind.  Even  the  Germany  has  been  suspect- 
ed by  some  critics  of  sacrificing  fidelity  to  poig- 
nancy of  contrast  and  picturesqueness  of  narrative 
Other  histories  too,  which  have  been  handed  down 
to  us  among  the  archives  of  the  people  to  whose  in- 
fancy they  relate,  have  been  thought  distorted  by 
the  pride  of  race  or  by  the  religious  sentiment  of  a 
newer  age.  It  is  important  then  to  observe  that 
these  suspicions,  whether  groundless  or  rational,  do 
not  attach  to  a  great  deal  of  archaic  law.  Much  of 
the  old  law  which  has  descended  to  us  was  pre- 
served merely  because  it  was  old.  Those  who 
practised  and  obeyed  it  did  not  pretend  to  under- 
stand it ;  and  in  some  cases  they  even  ridiculed  and 
despised  it.  They  offered  no  account  of  it  except 
that  it  had  conic  dow  n  to  them  from  their  ances- 
tors. If  we  confine  our  attention,  then,  to  thos6 
fragments  of  ancient  institutions  which  cannot  rea- 
sonably be  supposed  to  have  been  tampered  with, 
we  are  able  to  gain  a  clear  conception  of  certain 
great  characteristics  of  the  society  to  which  they 
originally  belonged.  Advancing  a  step  further,  we 
can  apply  our  know  ledge  to  systems  of  law  which, 
like  the  Code  of  Menu,  are  as  a  whole  of  suspicious 
authenticity  ;  and,  using  the  key  we  have  obtained, 
we  are  in  a  position  to  discriminate  those  portions 
of  them  which  are  truly  archaic  from  (hose  w  hich 
have  been  affected  by  the  prejudices,  interests,  or 


118     PRIMITIVE  SOCIETY  AND  AXCIEXT  LAW.    chap.  v. 


ignorance  of  the  compiler.  It  will  at  least  be  ac 
knowledged  that,  if  the  materials  for  this  process 
are  sufficient,  and  if  the  comparisons  be  accurately 
executed,  the  methods  followed  are  as  little  objec- 
tionable as  those  which  have  led  to  such  surprising 
results  in  comparative  philology. 

The  effect  of  the  evidence  derived  from  com- 
parative jurisprudence  is  to  establish  that  view  of 
the  primeval  condition  of  the  human  race  which  is 
known  as  the  Patriarchal  Theory.  There  is  no 
doubt,  of  course,  that  this  theory  was  originally 
based  on  the  Scriptural  history  of  the  Hebrew 
patriarchs  in  Lower  Asia ;  but,  as  has  been  ex- 
plained already,  its  connexion  with  Scripture  rather 
militated  than  otherwise  against  its  reception  as  a 
complete  theory,  since  the  majority  of  the  inquirers 
who  till  recently  addressed  themselves  with  most 
earnestness  to  the  colligation  of  social  phenomena, 
were  either  influenced  by  the  strongest  prejudice 
against  Hebrew  antiquities  or  by  the  strongest  de- 
sire to  construct  their  system  without  the  assist- 
ance of  religious  records.  Even  now  there  is  per- 
haps a  disposition  to  undervalue  these  accounts,  or 
rather  to  decline  generalising:  from  them,  as  forming 
part  of  the  traditions  of  a  Semitic  people.  It  is  to 
be  noted,  however,  that  the  legal  testimony  comes 
nearly  exclusively  from  the  institutions  of  societies 
belonging  to  the  Indo-European  stock,  the  Romans, 
Hindoos,  and  Sclavonians,  supplying  the  greater 
part  of  it ;  and  indeed  the  difficulty,  at  the  present 


cuAr.  v. 


SCBIPTUEAL  ACCOUNTS. 


113 


stage  of  tlie  inquiry,  is  to  know  where  to  stop,  to 
say  of  what  races  of  inen  it  is  not  allow  able  to  lay 
down  that  the  society  in  which  they  are  united  was 
originally  organised  on  the  patriarchal  model.  The 
chief  lineaments  of  such  a  society,  as  collected  froni 
the  early  chapters  in  Genesis,  I  need  not  attempt  to 
depict  with  any  minuteness,  both  because  they  are 
familiar  to  most  of  us  from  our  earliest  childhood, 
and  because,  from  the  interest  once  attaching  to  the 
controversy  which  takes  its  name  froni  the  debate 
between  Locke  and  Filiner,  they  fill  a  whole  chap- 
ter, though  not  a  very  profitable  one,  in  English 
literature.  The  points  which  lie  on  the  surface 
of  the  history  are  these : — The  eldest  male  parent 
— the  eldest  ascendant — is  absolutely  supreme  hi 
his  household.  His  dominion  extends  to  life  and 
Death,  and  is  as  unqualified  over  his  children  and 
their  houses  as  over  his  slaves  ;  indeed  the  relations 
of  sonship  and  serfdom  appear  to  differ  in  little  be- 
yond the  higher  capacity  which  the  child  in  blood 
po*>esses  of  becoming  one  day  the  head  of  a  family 
himself.  The  Hocks  and  herds  of  the  children  are 
the  Hocks  and  herds  of  the  lather,  and  the  posses- 
sions of  the  parent,  which  he  holds  in  a  representa- 
tive lather  than  in  a  proprietary  character,  are 
equally  divided  at  his  death  among  his  descendants 
in  the  first  degree,  the  eldest  son  sometimes  receiv. 
iug  a  double  share  under  the  name  of  birthright, 
but  more  generally  endowed  with  no  hereditary  ad- 
vantage beyond  an  honorary  precedence.    A  less 


120     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap.  v. 

obvious  inference  from  the  Scriptural  accounts  is 
that  they  seem  to  plant  us  on  the  traces  of  the 
breach  which  is  first  effected  in  the  empire  of  the 
parent.  The  families  of  Jacob  and  Esau  separate 
and  form  two  nations ;  but  the  families  of  Jacob's 
children  hold  together  and  become  a  people.  This 
looks  like  the  immature  germ  of  a  state  or  common- 
wealth, and  of  an  order  of  rights  superior  to  the 
claims  of  family  relation. 

If  I  were  attempting,  for  the  more  special  pur- 
poses of  the  jurist,  to  express  compendiously  the 
characteristics  of  the  situation  in  which  mankind 
disclose  themselves  at  the  dawn  of  their  history,  I 
should  be  satisfied  to  quote  a  few  verses  from  the 
Odyssee  of  Homer : 

Tolaiu  8  ovr   ayopai  ftov\rj(p6pni  ovtc  t(pi<TT(s. 

•  .  Sf/iioreufi  8e  (koo-tos 

naioap  ijd  d\6^(t)v  01S'  aAAiyXcoi'  aktyovaiv. 

"  They  have  neither  assemblies  for  consultation  nor 
themi-stes,  but  every  one  exercises  jurisdiction  over 
his  wives  and  his  children,  and  they  pay  no  regard 
to  one  another."  These  lines  are  applied  to  the 
Cyclops,  and  it  may  not  perhaps  be  an  altogether 
fanciful  idea  when  I  suggest  that  the  Cyclops  is 
Homer's  type  of  an  alien  and  less  advanced  civilisa- 
tion ;  for  the  almost  physical  loathing  which  a 
primitive  community  feels  for  men  of  widely  differ- 
ent manners  from  its  own  usually  expresses  itself 
by  describing  them  as  monsters,  such  as  giants,  01 


on  a  p.  r. 


PRIMITIVE  SOCIETY. 


121 


even  (which  is  almost  always  the  case  in  Oriental 
mythology)  as  demons.  However  that  may  be,  the 
verses  condense  in  themselves  the  sum  of  the  hints 
which  are  given  us  by  legal  antiquities.  Men  are 
first  seen  distributed  in  perfectly  insulated  groups 
held  together  by  obedience  to  the  parent.  Law  is 
the  parent's  word,  but  it  is  not  yet  in  the  condition 
of  those  themistes  which  were  analysed  in  the  first 
chapter  of  this  work.  When  we  go  forward  to  the 
state  of  society  in  which  these  early  legal  concep- 
tions show  themselves  as  formed,  we  find  that  they 
still  partake  of  the  mystery  and  spontaneity  which 
must  have  seemed  to  characterise  a  despotic  father's 
commands,  but  that  at  the  same  time,  inasmuch  as 
they  proceed  from  a  sovereign,  they  presuppose  a 
union  of  family  groups  in  some  wider  organisation. 
The  nest  cpiestion  is,  what  is  the  nature  of  this 
union  and  the  degree  of  intimacy  which  it  involves  ? 
It  is  just  here  that  archaic  law  renders  us  one  of 
the  greatest  of  its  services  and  fills  up  a  gap  which 
otherwise  could  only  have  been  bridged  by  conjec- 
ture. It  is  full,  in  all  its  provinces,  of  the  clearest 
indications  that  society  in  primitive  times  was  not 
what  it  is  assumed  to  be  at  present,  a  collection  of 
indici<lvals.  In  fact,  and  in  the  view  of  the  men 
who  composed  it,  it  was  an  a<j(j  relation  of  families 
The  contrast  may  be. most  forcibly  expressed  by 
Baying  that  the  unit  of  an  ancient  society  was  the 
Family,  of  a  modern  society  the  Individual.  We 
must  be  prepared  to  find  in  ancient  law  all  the  eon- 


122     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap,  v 


sequences  of  this  difference.  It  is  so  framed  as  to 
be  adjusted  to  a  system  of  small  independent  cor- 
porations. It  is  therefore  scanty,  because  it  is  sup- 
plemented by  the  despotic  commands  of  the  heads 
of  households.  It  is  ceremonious,  because  the 
transactions  to  which  it  pays  regard  resemble  inter 
national  concerns  much  more  than  the  quick  play 
of  intercourse  between  individuals.  Above  all  it 
has  a  peculiarity  of  which  the  full  importance  can- 
not be  shown  at  present.  It  takes  a  view  of  life 
wholly  unlike  any  which  appears  in  developed 
jurisprudence.  Corporations  never  die,  and  accord- 
ingly primitive  law  considers  the  entities  with 
which  it  deals,  i.  e.  the  patriarchal  or  family  groups, 
as  perpetual  and  inextinguishable.  This  view  is 
closely  allied  to  the  peculiar  aspect  under  which,  in 
very  ancient  times,  moral  attributes  present  them- 
selves. The  moral  elevation  and  moral  debasement 
of  the  iu dividual  appear  to  be  confounded  with,  or 
postponed  to,  the  merits  and  offences  of  the  group 
to  which  the  individual  belougs.  If  the  community 
sins,  its  guilt  is  much  more  than  the  sum  of  the 
offences  committed  by  its  members ;  the  crime  is 
a  corporate  act,  and  extends  in  its  consequences  to 
many  more  persons  than  have  shared  in  its  actual 
perpetration.  If,  on  the  other  hand,  the  individual 
is  conspicuously  guilty,  it  is  his  children,  his  kins- 
folk, his  tribesmen,  or  his  fellow-citizens,  who  suffer 
with  him,  and  sometimes  for  him.  It  thus  happens 
jhat  the  ideas  of  moral  responsibility  and  retrilm- 


cu.w.  v.    PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.  123 


tion  often  seem  to  be  more  clearly  realised  at  very 
ancient  than  at  more  advanced  periods,  for,  as  the 
family  group  is  immortal,  and  its  liability  to  pun- 
ishment indefinite,  the  primitive  mind  is  not  per- 
plexed  by  the  questions  which  become  troublesome 
as  soon  as  the  individual  is  conceived  as  altogether 
separate  from  the  group.  One  step  in  the  transition 
from  the  ancient  and  simple  view  of  the  matter  to 
the  theological  or  metaphysical  explanation  of  later 
days  is  marked  by  the  early  Greek  notion  of  an  in- 
herited curse.  The  bequest  received  by  his  pos- 
terity from  the  original  criminal  was  not  a  liability 
to  punishment,  but  a  liability  to  the  commission  of 
fresh  offences  which  drew  with  them  a  condign 
retribution ;  and  thus  the  responsibility  of  the 
family  was  reconciled  with  the  newer  phase  of 
thought  which  limited  the  consequences  of  crime  to 
the  person  of  the  actual  delinquent. 

It  would  be  a  very  simple  explanation  of  the 
origin  of  society  if  we  could  base  a  general  conclu- 
sion on  the  hint  furnished  us  by  the  Scriptural  ex- 
ample already  adverted  to,  and  could  suppose  that 
communities  began  to  exist  wherever  a  family  held 
together  instead  of  separating  at  the  death  of  its 
patriarchal  chieftain.  In  most  of  the  Greek  states 
and  in  Rome  there  long  remained  the  vestiges  of  an 
ascending  -d  ies  of  groups  out  of  which  the  State 
was  at  li rst  constituted.  The  Family,  House,  and 
Tribe  of  the  Romans  may  be  taken  as  the  type  of 
them,  and  they  are  so  described  to  us  that  we  can 


124     PRIMITIVE  SOCIETY  AND  ANCIENT  LAV.    chap,  v 


scarcely  help  conceiving  them  as  a  system  of  concen- 
tric circles  which  have  gradually  expanded  from  the 
same  point,    The  elementary  group  is  the  Family, 
connected  by  common  subjection  to  the  highest  male 
ascendant.    The  aggregation  of  Families  forms  the 
Gens  or  House.  The  aggregation  of  Houses  makes 
the  Tribe.    The  aggregation  of  Tribes  constitutes 
the  Commonwealth.    Are  we  at  liberty  to  follow 
these  indications,  and  to  lay  down  that  the  com- 
monwealth is  a  collection  of  persons  united  by 
common  descent  from  the  progenitor  of  an  original 
family  ?    Of  this  we  may  at  least  be  certain,  that  all 
ancient  societies  regarded  themselves  as  having  pro- 
ceeded from  one  original  stock,  and  even  laboured 
under  an  incapacity  for  comprehending  any  reason 
except  this  for  their  holding  together  in  political 
union.    The  history  of  political  ideas  begins,  in  fact, 
with  the  assumption  that  kinship  in  blood  is  the  sole 
possible  ground  of  community  in  political  functions 
nor  is  there  any  of  those  subversions  of  feeling,  which 
we  term  emphatically  revolutions,  so  startling  and 
so  complete  as  the  change  which  is  accomplished 
when  some  other  principle — such  as  that,  for  in- 
stance of  local  contiguity— establishes  itself  for  the 
first  time  as  the  basis  of  common  political  action. 
It  may  be  affirmed  then  of  early  commonwealths 
that  their  citizens  considered  all  the  groups  in  which 
they  claimed  membership  to  be  founded  on  common 
lineage.    What  was  obviously  true  of  the  Family 
was  believed  to  be  true,  first  of  the  House,  next  of 


onAP.  v. 


EARLY  POLITICAL  IDEAS. 


12S 


the  Tribe,  lastly  of  the  State.  And  yet  we  find  that 
along  with  this  belief,  or,  if  we  may  use  the  word, 
this  theory,  each  community  preserved  records  or 
traditions  which  distinctly  showed  that  the  funda- 
mental assumption  was  false.  "Whether  we  look  to 
the  Greek  states,  or  to  Rome,  or  to  the  Teutonic 
aristocracies  in  Ditmarsh  which  furnished  Niebuhr 
with  so  many  valuable  illustrations,  or  to  the  Celtic 
clan  associations,  or  to  that  strange  social  organisa- 
tion of  the  Sclavonic  Russians  and  Poles  which  has 
only  lately  attracted  notice,  everywhere  we  discover 
traces  of  passages  in  their  history  when  men  of  alien 
descent  were  admitted  to,  and  amalgamated  with, 
the  original  brotherhood.  Adverting  to  Rome 
singly,  we  perceive  that  the  primary  group,  the 
Family,  was  being  constantly  adulterated  by  the 
practice  of  adoption,  while  stories  seem  to  have  been 
always  current  respecting  the  exotic  extraction  of 
one  of  the  original  Tribes  and  concerning  a  large 
addition  to  the  Houses  made  by  one  of  the  early 
kings.  The  composition  of  the  state  uniformly  as- 
sumed to  be  natural,  was  nevertheless  known  to  be 
in  great  measure  artificial.  This  conflict  between 
belief  or  theory  and  notorious  fact  is  at  first  sight 
extremely  perplexing;  but  what  it  really  illustrates 
is  the  efficiency  with  which  Legal  Fictions  do  their 
work  in  the  infancy  of- society.  The  earliest  and 
most  extensively  employed  of  legal  fictions  was  that 
which  permitted  family  relations  to  be  created  arti- 
ficially, and  there  is  none  to  which  I  conceive  man- 


126     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap.  > 


kind  to  be  more  deeply  indebted.  If  it  had  never 
existed,  I  do  not  see  bow  any  one  of  the  primitive 
group?,  whatever  were  their  nature,  could  have  ab- 
sorbed another,  or  on  what  terms  any  two  of  them, 
could  have  combined,  except  those  of  absolute  supe- 
riority on  one  side  and  absolute  subjection  on  the 
other.  No  doubt,  when  with  our  modern  ideas  we 
contemplate  the  union  of  independent' communities, 
we  can  suggest  a  hundred  modes  of  carrying  it  out, 
the  simplest  of  all  being  that  the  individuals  com- 
prised in  the  coalescing  groups  shall  vote  or  act 
together  according  to  local  propinquity ;  but  the 
idea  that  a  number  of  persons  should  exercise  politi- 
cal rights  in  common  simply  because  they  happened 
to  live  within  the  same  topographical  limits  was  ut- 
terly strange  and  monstrous  to  primitive  antiquity. 
The'  expedient  which  in  those  times  commanded  fa- 
vour was  that  the  incoming  population  should  feign 
themselves  to  be  descended  from  the  same  stock  as 
the  people  on  whom  they  were  engrafted  ;  and  it  is 
precisely  the  good  faith  of  this  fiction,  and  the  close- 
ness with  which  it  seemed  to  imitate  reality,  that 
we  cannot  now  hope  to  understand.  One  circum- 
stance, however,  which  it  is  important  to  recollect, 
is  that  the  men  who  formed  the  various  political 
groups  were1  certainly  in  the  habit  of  meeting 
together  periodically,  for  the  purpose  of  acknowl- 
edging and  consecrating  their  association  by  com- 
mon sacrifices.  Strangers  amalgamated  with  the 
brothel  hood  were  doubtless  admitted  to  these  sacri 


OHAP.  V. 


ARISTOCRACIES. 


127 


fices  ;  aud  when  that  was  once  done,  we  can  believe 
that  it  seemed  equally  easy,  or  not  more  difficult,  to 
conceive  them  as  sharing  in  the  common  lineage. 
The  conclusion  then  which  is  suggested  by  the  evi- 
dence is,  not  that  all  early  societies  were  formed  by 
descent  from  the  same  ancestor,  but  that  all  of  them 
which  had  any  permanence  and  solidity  either  were 
so  descended  or  assumed  that  they  were.  An  in- 
definite number  of  causes  may  have  shattered  the 
primitive  groups,  but  wherever  their  ingredients 
recombiued,  it  was  on  the  model  or  principle  of  an 
association  of  kindred.  Whatever  were  the  fact,  all 
thought,  language,  aud  law  adjusted  themselves  to 
the  assumption.  But  though  all  this  seems  to  me  to 
be  established  with  reference  to  the  communities 
with  whose  records  we  are  acquainted,  the  remainder 
of  their  history  sustains  the  position  before  laid 
down  as  to  the  essentially  transient  and  terminable 
influence  of  the  most  powerful  Legal  Fictions.  At 
some  point  of  time — probably  as  soon  as  they  felt 
themselves  strong  enough  to  resist  extrinsic  pressure 
— all  these  states  ceased  to  recruit  themselves  by 
factitious  extensions  of  consanguinity.  They  neces- 
sarily, therefore,  became  Aristocracies,  in  all  cases 
where  a  fresh  population  from  any  canse  collected 
groan  1  (hem  which  could  put  in  no  claim  to  com- 
munity of  origin.  Their  sternness  in  maintaining 
the  central  principle  of  a  system  under  which  po- 
litical rights  were  attainable  on  no  terms  whatever, 
except  connexion  in  blood,  real  or  artificial,  taught 


123     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap  v 


their  inferiors  another  principle,  which  proved  to 
be  endowed  with  a  far  higher  measure  of  vitality. 
This  was  the  principle  of  local  contiguity,  now  recog- 
nised everywhere  as  the  condition  of  community  in 
political  functions.  A  new  set  of  political  ideas 
came  at  once  into  existence,  which,  being  those  of 
ourselves,  our  contemporaries,  and  in  great  measure 
of  our  ancestors,  rather  obscure  our  perception  of 
the  older  theory  which  they  vanquished  and  de- 
throned. 

The  Family  then  is  the  type  of  an  archaic  soci- 
ety in  all  the  modifications  which  it  was  capable  of 
assuming ;  but  the  family  here  spoken  of  is  not  ex- 
actly the  family  as  undeictood  by  a  modern.  In 
order  to  reach  the  ancient  conception  we  must  give 
to  our  modern  ideas  an  important  extension  and  an 
important  limitation.  We  must  look  on  the  family 
as  constantly  enlarged  by  the  absorption  of  stran- 
gers within  its  circle,  and  we  must  try  to  regard  the 
fiction  of  adoption  as  so  closely  simulating  the  reali- 
ty of  kinship  that  neither  law  nor  opinion  makes  the 
slightest  difference  between  a  real  and  an  adoptive 
connexion.  On  the  other  hand,  the  persons  theo- 
retically amalgamated  into  a  family  by  their  common 
descent  are  practically  held  together  by  common  obe- 
dience to  their  highest  living  ascendant,  the  father, 
grandfather,  or  great-grandfather.  The  patriarchal 
authority  of  a  chieftain  is  as  necessary  an  ingredient 
in  the  notion  of  the  family  group  as  the  fact  (or  as- 
sumed fact)  of  its  having  sprung  from  his  loins; 


CHAP.  V. 


THE  ANCIENT  FAMILY. 


129 


and  hence  we  must  understand  that  if  there  be  any 
persons  who,  however  truly  included  in  the  brother- 
hood by  virtue  of  their  blood-relationship,  have 
nevertheless  de  facto  withdrawn  themselves  from 
thf  empire  of  its  ruler,  they  are  always,  in  the  be- 
ginnings of  law,  considered  as  lost  to  the  family.  It 
is  this  patriarchal  aggregate — the  modern  family 
thus  cut  down  on  one  side  and  extended  on  the 
other — which  meets  us  on  the  threshold  of  primitive 
jurisprudence.  Older  probably  than  the  State,  the 
Tribe,  and  the  House,  it  left  traces  of  itself  on  pri- 
vate law  lone  after  the  House  and  the  Tribe  had 

O 

been  forgotten,  and  long  after  consanguinity  had 
ceased  to  be  associated  with  the  composition  of 
States.  It  will  be  found  to  have  stamped  itself  on 
all  the  great  departments  of  jurisprudence,  and  may 
be  detected,  I  think,  as  the  true  source  of  many  of 
their  most  important  and  most  durable  characteris- 
tics. At  the  outset,  tin;  peculiarities  of*  law  in  itg 
most  ancient  state  lead  us  irresistibly  to  the  conclu- 
sion tli.it  it  took  precisely  the  same  view  of  the 
family  group  which  is  taken  of  individual  men  by 
the  systems  of  rights  and  duties  now  prevalent 
throughout  Kurope.  There  are  societies  open  to  our 
observation  at  this  very  moment  whose  laws  and 
usages  can  scarcely  be  explained  unless  they  are 
nupposcd  never  to  have  emerged  from  this  primitive 
condition;  but  in  communities  more  fortunately  cir- 
cumstanced the  fabric  of  jurisprudence  fell  gradu- 
ally to  pieces,  and  if  we  carefully  observe  the  disu> 
9 


130     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap,  t 


tegration  wp  shall  perceive  that  it  took  place  prin- 
cipally in  those  portions  of  each  system  which  were 
most  deeply  affected  by  the  primitive  conception  of 
the  family.  In  one  all-important  instance,  that  of 
the  Roman  law,  the  change  was  effected  so  slowly 
that  from  epoch  to  epoch  we  can  observe  the  line  and 
direction  which  it  followed,  and  can  even  give  some 
idea  of  the  ultimate  result  to  which  it  was  tending. 
And,  in  pursuing  this  last  inquiry,  we  need  not  suf- 
fer ourselves  to  be  stopped  by  the  imaginary  barrier 
which  separates  the  modern  from  the  ancient  world. 
For  one  effect  of  that  mixture  of  refined  Roman  law 
with  primitive  barbaric  usage,  which  is  known  to  us 
by  the  deceptive  name  of  feudalism,  was  to  revive1 
many  features  of  archaic  jurisprudence  which  had 
died  out  of  the  Roman  world,  so  that  the  decom- 
position which  had  seemed  to  be  over  commenced 
again,  and  to  some  extent  is  still  proceeding. 

On  a  few  systems  of  law  the  family  organisa 
tion  of  the  earliest  society  has  left  a  plain  and  broad 
mark  in  the  life-long  authority  of  the  Father  or 
other  ancestor  over  the  person  and  property  of  his 
descendants,  an  authority  which  we  may  conve- 
niently call  by  its  later  Roman  name  of  Patria  Po- 
testas.  No  feature  of  the  rudimentary  associations 
of  mankind  is  deposed  to  by  a  greater  amount  of 
evidence  than  this,  and  yet  none  seems  to  have  dis- 
appeared so  generally  and  so  rapidly  from  the 
usages  of  advancing  communities.  Gains,  writing 
under  the  Antonines,  describes  the  institution  as 


CEAP.  V. 


THE  PATEIA  POTESTAS. 


131 


distinctively  Roman.  It  is  true,  that  had  he  glanced 
across  the  Rhine  or  the  Danube  to  those  tribes  of 
barbarians  w  hich  were  exciting  the  curiosity  of  son  ° 
among  his  contemporaries,  he  would  have  seen  ei 
amples  of  patriarchal  power  in  its  crudest  fomi 
and  in  the  far  East  a  branch  of  the  same  ethnical 
stock  from  which  the  Romans  sprang  was  repeating 
their  Patria  Potestas  in  some  of  its  most  technical 
incidents.  But  among  the  races  understood  to  be 
comprised  within  the  Roman  empire,  Gaius  could 
find  none  which  exhibited  an  institution  resembling 
the  Roman  "  Power  of  the  Father,"  except  only  the 
Asiatic  Galata?.  There  are  reasons,  indeed,  as  it 
seems  to  me,  why  the  direct  authority  of  the  ances- 
tor should,  in  the  greater  number  of  progressive 
societies,  very  shortly  assume  humbler  proportions 
than  belonged  to  it  in  their  earliest  state.  The  im- 
plicit obedience  of  rude  men  to  their  parent  is 
doubtless  a  primary  fact,  which  it  would  be  absurd 
to  explain  away  altogether  by  attributing  to  them 
any  calculation  of  its  advantages ;  but,  at  the  same 
time,  if  it  is  natural  in  the  sons  to  obey  the  father, 
it  is  equally  natural  that  they  should  look  to  him 
for  superior  strength  or  superior  wisdom.  Hence, 
when  societies  are  placed  under  circumstances  which 
cause  an  especial  value  to  be  attached  to  bodily  and 
mental  vigour,  there  is  an  influence  at  work  which 
tends  to  confine  the  Patria  Potestas  to  the  cases 
where  its  possessor  is  actually  skilful  and  strong. 
When  we  obtain  our  first  glimpse  of  organised 


132     PRIMITIVE  SOCIETY  AND  AKCIENT  LAW.    chap,  v 


Hellenic  society,  it  seems  as  if  supererninent  wisdom 
would  keep  alive  the  father's  power  in  persons 
whose  bodily  strength  had  decayed ;  but  the  rela- 
tions of  Ulysses  and  Laertes  in  the  Odyssey  appear 
to  show  that,  where  extraordinary  valour  and  sa- 
gacity were  united  in  the  son,  the  father  in  the  de- 
crepitude of  age  was  deposed  from  the  headship  of 
the  family.  In  the  mature  Greek  jurisprudence, 
the  rule  advances  a  few  steps  on  the  practice  hint- 
ed at  in  the  Homeric  literature ;  and  though  very 
many  traces  of  stringent  family  obligation  remain, 
the  direct  authority  of  the  parent  is  limited,  as  in 
European  codes,  to  the  nonage  or  minority  of  the 
children,  or,  in  other  words,  to  the  period  during 
which  their  mental  and  physical  inferiority  may 
always  be  presumed.  The  Roman  law,  however, 
with  its  remarkable  tendency  to  innovate  on  ancient 
usage  only  just  so  far  as  the  exigency  of  the  com- 
monwealth may  require,  preserves  both  the  prime- 
val institution  and  the  natural  limitation  to  which 
I  conceive  it  to  have  been  subject.  In  every  rela- 
tion of  life  in  which  the  collective  community  might 
have  occasion  to  avail  itself  of  his  wisdom  and 
strength,  for  all  purposes  of  counsel  or  of  war,  the 
filius  familias,  or  Son  under  Power,  was  as  free  as 
his  father.  It  was  a  maxim  of  Roman  jurispru- 
dence that  the  Patria  Potestas  did  not  extend  to 
the  Jus  Publicum.  Father  and  son  voted  together 
in  the  city,  and  fought  side  by  side  in  the  field  ; 
indeed,  the  son,  as  general,  might  happen  to  com 


CHAP.  V. 


THE  P ATRIA  POTESTAS. 


133 


mand  the  father,  or,  as  magistrate,  decide  on  Lis 
contracts  and  punish  his  delinquencies.  But  in  all 
the  relations  created  by  Private  Law,  the  son  lived 
under  a  domestic  despotism  which,  considering  the 
severity  it  retained  to  the  last,  and  the  number  of 
centuries  through  which  it  endured,  constitutes  one 
of  the  strangest  problems  in  legal  history. 

The  Patria  Potestas  of  the  Romans,  which  is 
necessarily  our  type  of  the  primeval  paternal  au- 
thority, is  equally  difficult  to  understand  as  an  in- 
stitution of  civilized  life,  whether  we  consider  its 
incidence  on  the  person  or  its  effects  on  property. 
It  is  to  be  regretted  that  a  chasm  which  exists  in 
its  history  cannot  be  more  completely  filled.  .So  far 
as  regards  the  person,  the  parent,  Avhen  our  infor- 
mation commences,  has  over  his  children  the  jus 
vike  nccisque,  the  power  of  life  and  death,  and  a 
fortiori  of  uncontrolled  corporal  chastisement ;  he 
can  modify  their  personal  condition  at  pleasure  ;  he 
can  give  a  wife  to  his  son ;  he  can  give  his  daugh- 
ter in  marriage  ;  he  can  divorce  his  children  of 
either  sex  ;  he  can  transfer  them  to  another  family 
by  adoption;  and  he  can  sell  them.  Late  in  the 
Imperial  period  we  find  vestiges  of  all  these  powers, 
but  they  are  reduced  within  very  narrow  limits. 
The  niKjiialilied  right  of  domestic  chastisement  has 
become  a  right  of  bringing  domestic  offences  under 
the  cognisance  of  the  civil  magistrate;  the  privilege 
of  dictating  marriage  has  declined  into  a  condition- 
al  veto;  the  liberty  of  selling  has  been  virtually 


134     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.   chap.  ■» 


abolished,  and  adoption  itself,  destined  to  lose  al 
most  all  its  ancient  importance  in  the  reformed  sys- 
tem of  Justinian,  can  no  longer  be  effected  without 
the  assent  of  the  child  transferred  to  the  adoptive 
parentage.    In  short,  we  are  bought  very  close  to 
the  verge  of  the  ideas  which  have  at  length  pre- 
vailed in  the  modern  world.    But  between  these 
widely  distant  epochs  there  is  an  interval  of  ob- 
scurity, and  we  can  only  guess  at  the  causes  which 
permitted  the  Patria  Potestas  to  last  as  long  as  it 
did  by  rendering  it  more  tolerable  than  it  appears. 
The  active  discharge  of  the  most  important  among 
the  duties  which  the  son  owed  to  the  state  must 
have  tempered  the  authority  of  his  parent  if  they 
did  not  annul  it.    We  can  readily  persuade  our 
selves  that  the  paternal  despotism  could  not  be 
brought  into  play  without  great  scandal  against  a 
man  of  full  age  occupying  a  high  civil  office.  Dur- 
ing the  earlier  history,  however,  such  cases  of  prac- 
tical emancipation  would  be  rare  compared  with 
those  which  must  have  been  created  by  the  constant 
wars  of  the  Roman  republic.    The  military  tribune 
and  the  private  soldier  who  were  in  the  field  three 
quarters  of  a  year  during  the  earlier  contests,  at  a 
later  period  the  proconsul  in  charge  of  a  province, 
and  the  legionaries  who  occupied  it,  cannot  have 
had  practical  reason  to  regard  themselves  as  the 
slaves  of  a  despotic  master ;  and  all  these  avenues 
of  escape  tended  constantly  to  multiply  themselves. 
Victories  led  to  conquests,  conquests  to  occupations; 


cnAP.  v. 


THE  T? ATRIA  TOTESTAS. 


133 


tlie  mode  of  occupation  by  colonies  was  exchanged 
for  the  system  of  occupying  provinces  by  standing 
armies.  Each  step  in  advance  was  a  call  for  the 
expatriation  of  more  Roman  citizens  and  a  fresh 
draft  on  the  blood  of  the  failing  Latin  race.  We 
may  infer,  1  think,  that  a  strong  sentiment  in  favour 
of  the  relaxation  of  the  Patria  Potestas  had  become 
fixed  by  the  time  that  the  pacification  of  the  world 
commenced  on  the  establishment  of  the  Empire. 
The  first  serious  blows  at  the  ancient  institution  are 
attributed  to  the  earlier  Caesars,  and  some  isolated 
interferences  of  Trajan  and  Hadrian  seem  to  have 
j  in  pared  the  ground  for  a  series  of  express  enact- 
ments which,  though  we  cannot  always  determine 
their  dates,  we  know  to  have  limited  the  father's 
powers  on  the  one  hand,  and  on  the  other  to  have 
multiplied  facilities  for  their  voluntary  surrender. 
The  older  mode  of  getting  rid  of  the  Potestas,  by 
effecting  a  triple  sale  of  the  son's  person,  is  evi- 
dence, 1  may  remark,  of  a  very  early  feeling  against 
the  unnecessary  prolongation  of  the  powers.  The 
rule  which  declared  that  the  son  should  be  free 
after  having  been  three  times  sold  by  his  father 
seems  to  have  been  originally  meant  to  entail  penal 
consequences  on  a  practice  which  revolted  even  the 
imperfect  morality  of  the  primitive  Roman.  But 
even  before  the  publication  of  the  Twelve  Tables  it 
had  been  turned,  by  the  ingenuity  of  the  juriscon 
raits,  into  an  expedient  for  destroying  the  parental 


136     PRIMITIVE  SOCIETx  AXD  ANCIENT  LAW.   chap,  t 


authority  wherever  the  father  desired  that  it  should 
cease. 

Many  of  the  causes  which  helped  to  mitigate  the 
stringency  of  the  father's  power  over  the  persons  of 
his  children  are  doubtless  among  those  which  do 
not  lie  upon  the  face  of  history.  We  cannot  tell 
how  far  public  opinion  may  have  paralysed  an  au- 
thority which  the  law  conferred,  or  how  far  natural 
affection  may  have  rendered  it  endurable.  But 
though  the  powers  over  the  person  may  have  been 
latterly  nominal,  the  whole  tenour  of  the  extant 
Roman  jurisprudence  suggests  that  the  father's 
rights  over  the  son's  property  were  always  exercised 
without  scruple  to  the  full  extent  to  which  they 
were  sanctioned  by  law.  There  is  nothing  to  as- 
tonish us  in  the  latitude  of  these  rights  when  they 
first  show  themselves.  The  ancient  law  of  Rome 
forbade  the  Children  under  Power  to  hold  property 
apart  from  their  parent,  or  (we  should  rather  say) 
never  contemplated  the  possibility  of  their  claiming 
a  separate  ownership.  The  father  was  entitled  to 
take  the  whole  of  the  son's  acquisitions,  and  to  en- 
joy the  benefit  of  his  contracts  without  being  en- 
tangled in  any  compensating  liability.  So  much  as 
this  we  should  expect  from  the  constitution  of  the 
earliest  Roman  society,  for  we  can  hardly  form  a 
notion  of  the  primitive  family  group  unless  we  sup- 
pose that  its  members  brought  their  earnings  of  all 
kinds  into  the  common  stock  while  they  were  un- 
able to  bind  it  by  improvident  individual  engage 


CHAP.  V. 


TI1E  PATBIA  POTEST  AS. 


137 


ments.  The  true  eniorna  of  the  Patria  Potestas 
does  not  reside  here,  but  in  the  slowness  with  which 
these  proprietary  privileges  of  the  parent  were  cur- 
tailed, and  in  the  circumstance  that,  before  they 
were  seriously  diminished,  the  whole  civilised  world 
was  brought  within  their  sphere.  No  innovation 
of  any  kind  was  attempted  till  the  first  years  of  the 
Empire,  when  the  acquisitions  of  soldiers  on  ser- 
vice were  withdrawn  from  the  operation  of  the 
Patria  Potestas,  doubtless  as  part  of  the  reward  of 
the  armies  which  had  overthrown  the  free  common- 
wealth. Three  centuries  afterwards  the  same  im- 
munity was  extended  to  the  earnings  of  persons  who 
were  in  the  civil  employment  of  the  state.  Both 
changes  were  obviously  limited  in  their  application, 
and  they  were  so  contrived  in  technical  form  as  to 
interfere  as  little  as  possible  with  the  principle  of 
Patria  Potestas.  A  certain  qualified  and  dependent 
ownership  had  always  been  recognised  by  the  Ro- 
man law  in  the  perquisites  and  savings  which 
slaves  and  sons  under  power  were  not  compelled  to 
include  in  the  household  accounts,  and  the  special 
name  of  this  permissive  property,  Peculium,  was  ap- 
plied to  the  acquisitions  newly  relieved  from  Patria 
Potestas,  which  were  called  in  the  case  of  soldiers 
Castrense  Peculium,  and  Quasi-castrense  Peculium 
in  the  case  of  civil  servants.  Other  modifications 
of  the  parental  privileges  followed,  which  showed  a 
less  studious  outward  respect  for  the  ancient  prin- 
ciple.   Shortly  after  the  introduction  of  the  Quasi 


138     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    cdap.  v 


castrense  Peculium,  Coiistantine  tlie  Great  took 
away  the  father's  absolute  control  over  property 
which  his  children  had  inherited  from  their  moth- 
ers, and  reduced  it  to  a  imtfnict,  or  life-interest.  A 
few  more  changes  of  slight  importance  followed  in 
the  Western  Empire,  but  the  furthest  point  reached 
Wfl s  in  the  East,  under  Justinian,  who  enacted  that 
unless  the  acquisitions  of  the  child  were  derived  from 
the  parent's  own  property,  the  parent's  rights  over 
them  should  not  extend  beyond  enjoying  their 
produce  for  the  period  of  his  life.  Even  this,  the 
utmost  relaxation  of  the  Roman  Patria  Potestas,  left 
it  far  ampler  and  severer  than  any  analogous  insti- 
tution of  the  modern  world.  The  earliest  modern 
writers  on  jurisprudence  remark  that  it  was  only 
the  fiercer  and  ruder  of  the  conquerors  of  the  em- 
pire, and  notably  the  nations  of  Sclavonic  ongin, 
which  exhibited  a  Patria  Potestas  at  all  resembling 
that  which  was  described  in  the  Pandects  and  the 
Code.  All  the  Germanic  immigrants  seem  to  have 
recognised  a  corporate  union  of  the  family  under 
the  m /oid,  or  authority  of  a  patriarchal  chief;  but 
his  powers  are  obviously  only  the  relics  of  a  de 
cayed  Patria  Pojtestas,  and  fell  for  short  of  those 
enjoyed  by  the  Roman  father.  The  Franks  are 
particularly  mentioned  as  not  having  the  Roman 
institution,  and  accordingly  the  old  French  lawyers, 
even  when  most  busily  engaged  in  filling  the  in- 
terstices of  barbarous  custom  with  rules  of  Roman 
law,  were  obliged  to  protect  themselves  against  the 


cnAP.  v 


THE  PATEIA  POTESTAS. 


1:39 


intrusion  of  the  Potestas  by  the  express  maxim, 
Puy  stance  de  pere  en  France  rCa  lieu.  The  te- 
nacity of  the  Romans  in  maintaining  this  relic  of 
their  most  ancient  condition  is  in  itself  remarkable, 
but  it  is  less  remarkable  than  the  diffusion  of  the 
Potestas  over  the  whole  of  a  civilisation  from  which 
it  had  once  disappeared.  While  the  Castrense  Pe- 
culinm  constituted  as  yet  the  sole  exception  to  the 
father's  power  over  property,  and  while  his  power 
over  his  children's  persons  was  still  extensive,  the 
Roman  citizenship,  and  with  it  the  Patria  Potestas, 
were  spreading  into  every  corner  of  the  Empire. 
Every  African  or  Spaniard,  every  Gaul,  Briton,  or 
Jew,  who  received  this  honour  by  gift,  purchase,  or 
inheritance,  placed  himself  under  the  Roman  Law 
of  Persons,  and,  though  our  authorities  intimate 
that  children  born  before  the  acquisition  of  citi- 
zenship could  not  be  brought  under  Power  against 
their  will,  children  born  after  it  and  all  ulterior  de- 
scendants were  on  the  ordinary  footing  of  a  Roman 
filiai  fa/nil/as.  It  does  not  fall  within  the  province 
of  this  treatise  to  examine  the  mechanism  of  the 
later  Roman  society,  but  I  may  be  permitted  to  re- 
mark that  there  is  little  foundation  for  the  opinion 
which  represents  the  constitution  of  Antoninus 
Caracalla  conferring  Roman  citizenship  on  the 
whole  of  his  subjects  as  a  measure  of  small  import- 
ance. However  we  may  interpret  it,  it  must  have 
enormously  enlarged  the  sphere  of  the  Patria  Po- 
testas, and  it  seems  to  me  that  the  tiiditeninir  oi 


140     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    crap,  v 


family  relations  which  it  effected  is  an  agency  which 
ought  to  be  kept  in  view  more  than  it  has  been, 
in  accounting  for  the  great  moral  revolution  which 
was  transforming  the  world. 

Before  this  branch  of  our  subject  is  dismissed,  it 
should  be  observed  that  the  Paterfamilias  was  an- 
swerable for  the  delicts  (or  torts)  of  his  Sons  under 
Power.  He  was  similarly  liable  for  the  torts  of  his 
slaves;  but  in  both  cases  he  originally  possessed 
the  singular  privilege  of  tendering  the  delinquent's 
person  in  full  satisfaction  of  the  damage.  The  re- 
sponsibility thus  incurred  on  behalf  of  sons,  coupled 
with  the  mutual  incapacity  of  Parent  and  Child 
under  Power  to  sue  one  another,  has  seemed  to 
some  jurists  to  be  best  explained  by  the  assump- 
tion of  a  "  unity  of  person "  between  the  Paterfa- 
milias and  the  Filiusfamilias.  In  the  Chapter  on 
Successions  I  shall  attempt  to  show  in  what  sense, 
and  to  what  extent,  this  "unity"  can  be  accepted 
as  a  reality.  I  can  only  say  at  present  that  these 
responsibilities  of  the  Paterfamilias,  and  other  legal 
phenomena  which  will  be  discussed  hereafter,  ap- 
pear to  me  to  point  at  certain  duties  of  the  primi- 
tive Patriarchal  chieftain  which  balanced  his  rights. 
I  conceive  that,  if  he  disposed  absolutely  of  the 
persons  and  fort  une  of  his  clansmen,  this  representa- 
tive ownership  was  coextensive  witli  a  liability  to 
provide  for  all  members  of  the  brotherhood  out  of 
the  common  fund.  The  difficulty  is  to  throw  our- 
selves out  of  our  habitual  associations  sufficiently 


cnAP.  v. 


THE  PATPJA  POTESTAS. 


141 


for  conceiving  tlie  nature  of  his  obligation.  It  'was 
not  a  legal  duty,  for  law  had  not  yet  penetrated 
into  the  precincts  of  the  Family.  To  call  it  moral 
is  perhaps  to  anticipate  the  ideas  belonging  to  a 
later  stage  of  mental  development ;  but  the  expres- 
sion "  moral  obligation "  is  significant  enough  for 
o  o  o 

our  purpose,  if  we  understand  by  it  a  duty  semi- 
consciously  followed  and  enforced  rather  by  instinct 
and  habit  than  by  definite  sanctions. 

The  Patria  Potestas,  in  its  normal  shape,  has  not 
been,  and,  as  it  seems  to  me,  could  not  have  been,  a 
generally  durable  institution.  The  proof  of  its  for- 
mer universality  is  therefore  incomplete  so  long  as  we 
consider  it  by  itself  ;  but  the  demonstration  may  be 
carried  much  further  by  examining  other  depart- 
ments of  ancient  law  which  depend  on  it  ultimately, 
but  not  by  a  thread  of  connexion  visible  in  all  its 
parts  or  to  all  eyes.  Let  us  turn  for  example  to 
Kinship,  or  in  other  words,  to  the  scale  on  which 
the  proximity  of  relatives  to  each  other  is  calculated 
in  archaic  juris] irudence.  Here  again  it  will  be 
convenient  to  employ  the  Roman  terms,  Agnatic 
and  Cognatic  relationship.  Cognatic  relationship 
is  simply  the  conception  of  kinship  familiar  to 
modern  ideas  ;  it  is  the  relationship  arising  through 
common  descent  from  the  same  pair  of  married  per 
sons,  whether  the  descent  Ik;  traced  through  males 
or  females.  Agnatic  relationship  is  something  very 
different:  it  excludes  n  number  of  persons  whom 
we  in  our  day  should  certainly  consider  of  kin  to 


142     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap.  t. 


ourselves,  and  it  includes  many  more  whom  we 
should  never  reckon  among  our  kindred.  It  is  in 
truth  the  connexion  existing  between  the  members 
of  the  Family,  conceived  as  it  was  in  the  most  an- 
cient times.  The  limits  of  this  connexion  are  far 
froin  conterminous  with  those  of  modern  relation- 
ship. 

Cognates  then  are  all  those  persons  who  can 
trace  their  blood  to  a  single  ancestor  and  ances- 
tress ;  or,  if  we  take  the  strict  technical  meaning  of 
the  word  in  Roman  law,  they  are  all  who  trace 
their  blood  to  the  legitimate  marriage  of  a  common 
pair.  "  Cognation  "  is  therefore  a  relative  term,  and 
the  degree  of  connexion  in  blood  which  it  indicates 
depends  on  the  particular  marriage  which  is  selected 
as  the  commencement  of  the  calculation.  If  we  be- 
gin with  the  marriage  of  father  and  mother,  Cogna- 
tion will  only  express  the  relationship  of  brothers 
and  sisters ;  if  we  take  that  of  the  grandfather  and 
grandmother,  then  uncles,  aunts,  and  their  descend- 
ants will  also  be  included  in  the  notion  of  Cogna- 
tion, and  following  the  same  process  a  larger  num- 
ber of  Cognates  may  be  continually  obtained  by 
choosing  the  starting  point  higher  and  higher  up 
in  the  line  of  ascent.  All  this  is  easily  understood 
by  a  modern  ;  but  who  are  the  Agnates  ?  In  the 
first  place,  they  are  all  the  Cognates  who  trace 
their  connexion  exclusively  through  males.  A 
table  of  Cognates  is,  of  course,  formed  by  taking 
each  lineal  ancestor  in  turn  and  including  all  his 


CHAP.  V. 


AGNATION  AND  COGNATION. 


US 


descendants  of  both  sexes  in  the  tabular  view ;  if 
then,  in  tracing-  the  various  branches  of  such  a 
genealogical  table  or  tree,  we  stop  whenever  we 
come  to  the  name  of  a  female  and  pursue  that  par- 
ticular branch  or  ramification  no  further,  all  who 
remain  after  the  descendants  of  women  have  been 
excluded  are  Annates,  and  their  connexion  together 
is  Agnatic  Relationship.  I  dwell  a  little  on  the 
process  which  is  practically  followed  in  separating 
them  from  the  Cognates,  because  it  explains  a  me- 
morable legal  maxim,  "  Mulier  est  finis  familia? " — 
a  woman  is  the  terminus  of  the  family.  A  female 
name  closes  the  branch  or  twig  of  the  genealogy  in 
which  it  occurs.  None  of  the  descendants  of  a  fe- 
male are  included  in  the  primitive  notion  of  family 
relationship. 

If  the  system  of  archaic  law  at  which  we  are 
looking  be  one  which  admits  Adoption,  we  must 
add  to  the  Agnates  thus  obtained  all  persons,  male 
or  female,  who  have  been  brought  into  the  Family 
by  the  artificial  extension  of  its  boundaries.  But 
the  descendants  of  such  persons  will  only  be  Ag- 
nates, if  they  satisfy  the  conditions  which  have  just 
been  described. 

What  then  is  the  reason  of  this  arbitrary  inclu- 
sion and  exclusion  ?  Why  should  a  conception  of 
Kinship,  so  elastic  as  to  include  strangers  brought 
into  the  family  by  adoption,  be  nevertheless  so  nar- 
row as  to  shut  out  the  descendants  of  a  female 
member  ?    To  solve  the.se  questions,  we  must  recur 


144     PRIMITIVE  SOCIETY  AXD  ANCIENT  LAW.    chap,  v 


to  the  Patria  Potestas.  Tlie  foundation  of  Ao-na* 
tion  is  not  the  marriage  of  Father  and  Mother,  but 
the  authority  of  the  Father.  All  persons  are  Ag- 
natieally  connected  together  who  are  under  the 
same  Paternal  Power,  or  who  have  been  under  it, 
or  who  mio;ht  have  been  under  it  if  their  lineal  an- 
cestor  had  lived  long  enough  to  exercise  his  empire. 
In  truth,  in  the  primitive  view,  Relationship  is  ex- 
actly limited  by  Patria  Potestas.  Where  the  Po- 
testas  begins,  Kinship  begins  ;  and  therefore  adop- 
tive relatives  are  among  the  kindred.  Where  the 
Potestas  ends,  Kinship  ends;  so  that  a  son  emanci- 
pated by  his  father  loses  all  rights  of  Agnation. 
And  here  we  have  the  reason  why  the  descendants 
of  females  are  outside  the  limits  of  archaic  kinship. 
If  a  woman  died  unmarried,  she  could  have  no  le- 
gitimate descendants.  If  she  married,  her  children 
fell  under  the  Patria  Potestas,  not  of  her  Father, 
but  of  her  Husband,  and  thus  were  lost  to  her  own 
family.  It  is  obvious  that  the  organisation  of  primi- 
tive societies  would  have  been  confounded,  if  men 
had  called  themselves  relatives  of  their  mother's  rel- 
atives. The  inference  would  have  been  that  a  per- 
son might  be  subject  to  two  distinct  Patria'  Poles- 
tates ;  but  distinct  Patriaj  Potestates  implied  dis- 
tinct jurisdictions,  so  that  anybody  amenable  to 
two  of  them  at  the  same  time  would  have  lived 
under  two  different  dispensations.  As  long  as  the 
Family  was  an  imperium  in  imperio,  a  community 
within  the  commonwealth,  governed  by  its  own  in- 


CP-VP.  V. 


THE  PARENTAL  POWERS. 


145 


stitutions  of  which  the  parent  was  the  source,  the 
limitation  of  relationship  to  the  Agnates  was  a  nec- 
essary security  against  a  conflict  of  laws  in  the 
domestic  forum. 

The  Parental  Powers  proper  are  extinguished  by 
the  death  of  the  Parent,  but  Agnation  is  as  it  were 
a  mould  which  retains  their  imprint  after  they  have 
ceased  to  exist.    Hence  comes  the  interest  of  A^na- 
tion  for  the  inquirer  into  the  history  of  jurispru- 
dence.   The  powers  themselves  are  discernible  in 
comparatively  few  monuments  of  ancient  law,  but 
Agnatic  Relationship,  which  implies  their  former 
existence,  is  discoverable  almost  everywhere.  There 
are  few  in<liu'enou>  bodies  of  law  belon^in^-  to  coni- 
munities  of  the  Indo-European  stock,  which  do  not 
exhibit  peculiarities  in  the  most  ancient  part  of 
their  structure  which  are  clearly  referable  to  Ag- 
nation.   In  Hindoo  law,  for  example,  which  is  satu- 
rated with  the  primitive  notions  of  family  depend- 
ency, kinship  is  entirely  Agnatic,  and  I  am  in- 
formed that  in  Hindoo  genealogies  the  names  of 
women  are  generally  omitted  altogether.   The  same 
view  of  relationship  pervades  so  much  of  the  laws 
of  the  races  who  overran  the  Roman  Empire  as  ap- 
peals to  have  really  formed  part  of  their  primitive 
usage,  and  we  may  suspect  that  it  would  have  per- 
petuated itself  even  more  than  it  has  in  modern 
European  jurisprudence,  if  it  had  not  been  for  the 
vast  influence  of  the  later  Roman  law  on  modern 
thought,    The  Praetors  early  laid  hold  on  Cogna 
10 


146 


PRIMITIVE  SOCIETY  AND  ANCIENT  LAW. 


CIIAP.  T 


tion  as  the  natural  form  of  kinship,  and  spared  no 
pains  in  purifying  their  system  from  the  older  con- 
ception. Their  ideas  have  descended  to  us,  but  still 
traces  of  Agnation  are  to  be  seen  in  many  of  the 
modern  rules  of  succession  after  death.  The  exclu 
sion  of  females  and  their  children  from  govern- 
mental functions,  commonly  attributed  to  the  usage 
of  the  Salian  Franks,  has  certainly  an  agnatic  origin, 
being  descended  from  the  ancient  German  rule  of 
succession  to  allodial  property.  In  Agnation  too 
is  to  be  sought  the  explanation  of  that  extraordi- 
nary rule  of  English  Law,  only  recently  repealed, 
which  prohibited  brothers  of  the  half-blood  from 
succeeding  to  one  another's  lands.  In  the  Customs 
of  Normandy,  the  rule  applies  to  uterine  brothers 
only,  that  is,  to  brothers  by  the  same  mother 
but  not  by  the  same  father ;  and,  limited  in  this 
way,  it  is  a  strict  deduction  from  the  system  of  Ag- 
nation, under  which  uterine  brothers  are  no  rela 
tions  at  all  to  one  another.  When  it  was  trans 
planted  to  England,  the  English  judges,  who  had  no 
clue  to  its  principle,  interpreted  it  as  a  general  pro- 
hibition against  the  succession  of  the  half-blood, 
and  extended  it  to  consanguineous  brothers,  that  is 
to  sons  of  the  same  father  by  different  wives.  In 
all  the  literature  which  enshrines  the  pretended 
philosophy  of  law,  there  is  nothing  more  curious 
than  the  pages  of  elaborate  sophistry  in  which 
Blackstone  attempts  to  explain  and  justify  the  ex- 
clusion of  the  half-blood. 


OH  A  P.  V. 


GUABDIAXSniP  OF  WOMEN". 


It  may  "be  shown,  I  think,  that  the  Family,  aa 
held  together  by  the  Patria  Potestas,  is  the  nidus 
out  of  which  the  entire  Law  of  Persons  has  germi- 
nated.   Of  all  the  chapters  of  that  Law  the  most 
important  is  that  which  is  concerned  with  the 
status  of  Females.    It  has  just  been  stated  that 
Primitive  Jurisprudence,  though  it  does  not  allow 
a  Woman  to  communicate  any  rights  of  Agnation  to 
her  descendants,  includes  herself  nevertheless  in  the 
Agnatic  bond.    Indeed,  the  relation  of  a  female  to 
the  family  in  which  she  was  born  is  much  stricter, 
closer,  and  more  durable  than  that  which  unites 
her  male  kinsmen.    We  have  several  times  laid 
down  that  early  law  takes  notice  of  Families  only  ; 
this  is  the  same  thing  as  saying  that  it  only  takes 
notice  of  persons  exercising  Patria  Potestas,  and  ac- 
cordingly the  only  principle  on  which  it  enfran- 
chises a  son  or  grandson  at  the  death  of  his  Parent, 
is  a  consideration  of  the  capacity  inherent  in  such 
son  or  grandson  to  become  himself  the  head  of  a  new 
family  and  the  root  of  a  new  set  of  Parental  Powers. 
Bat  a  Avoman,  of  course,  has  no  capacity  of  the 
kind,  and  no  title  accordingly  to  the  liberation 
which  it  confers.    There  is  therefore  a  peculiar  con- 
trivance of  archaic  jurisprudence  for  retaining  her 
in  the  bondage  of  the  Family  for  life.    This  is  the 
institution  known  to  the  oldest  Roman  law  as  the 
Perpetual  Tutelage  of  Women,  under  w  hich  a  I  V 
male,  though  relieved  from  her  Parent's  authority 
by  his  decease,  continues  subject  through  life  to  her 


14S     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap.  v. 


nearest  male  relations,  or  to  her  Father's  nominees, 
as  her  Guardians.  Perpetual  Guardianship  is  ob- 
viously neither  more  nor  less  than  an  artificial  pro- 
longation of  the  Patria  Potestas,  when  for  other 
purposes  it  has  been  dissolved.  In  India,  the  sys- 
tem survives  in  absolute  completeness,  and  its  oper- 
ation is  so  strict  that  a  Hindoo  Mother  frequently 
becomes  the  ward  of  her  own  sons.  Even  in  Eu- 
rope, the  laws  of  the  Scandinavian  nations  respect- 
ing women  preserved  it  until  quite  recently.  The 
invaders  of  the  Western  Empire  had  it  universally 
amono;  their  indigenous  usages,  and  indeed  their 
ideas  on  the  subject  of  Guardianship,  in  all  its 
forms,  were  among  the  most  retrogressive  of  those 
which  they  introduced  into  the  Western  world. 
But  from  the  mature  Roman  jurisprudence  it  had 
entirely  disappeared.  We  should  know  almost 
nothing  about  it,  if  we  had  only  the  compilations 
of  Justinian  to  consult ;  but  the  discovery  of  the 
manuscript  of  Gaius  discloses  it  to  us  at  a  most  in- 
teresting epoch,  just  when  it  had  fallen  into  com- 
plete discredit  and  wis  verging  on  extinction.  The 
great  jurisconsult  himself  scouts  the  popular  apolo- 
gy offered  for  it  in  the  mental  inferiority  of  the 
female  sex,  and  a  considerable  part  of  his  volume  is 
taken  up  with  descrij>tions  of  the  numerous  expe- 
dients, some  of  them  displaying  extraordinary  in- 
genuity, which  the  Roman  lawyers  had  devised  for 
enabling  Women  to  defeat  the  ancient  rules.  Led 
by  their  theoiy  of  Natural  Law,  the  jurisconsults 


nnAP.  v.  AXCIEXT  ROMAN  MARRIAGE. 


149 


had  evidently  at  this  time  assumed  the  equality  of 
the  sexes  as  a  principle  of  their  code  of  equity. 
The  restrictions  which  they  attacked  were,  it  is  to 
be  observed,  restrictions  on  the  disposition  of  prop- 
erty, for  which  the  assent  of  the  woman's  guardians 
was  still  formally  required.  Control  of  her  per- 
son was  apparently  quite  obsolete. 

Ancient  law  subordinates  the  woman  to  her 
blood-relations,  while  a  prime  phenomenon  of  mod- 
ern jurisprudence  has  been  her  subordination  to  her 
husband.  The  history  of  the  change  is  remarkable. 
It  begins  far  back  in  the  annals  of  Rome.  An 
ciently,  there  were  three  modes  in  which  marriage 
might  be  contracted  according  to  Roman  usage,  one 
involving  a  religious  solemnity,  the  other  two  the 
observance  of  certain  secular  formalities.  By  the 
religious  marriage  or  Confarreation  ;  by  the  higher 
form  of  civil  marriage,  which  was  called  Coemption  ; 
and  by  the  lower  form,  which  was  termed  Usus, 
the  Husband  acquired  a  number  of  rights  over  the 
person  and  property  of  his  wife,  which  were  on  the 
whole  in  excess  of  such  as  are  conferred  on  him  in 
any  system  of  modern  jurisprudence.  But  in  what 
capacity  did  lie  acquire  them  '.  Not  as  lln-shaml,  hut 
as  Father.  By  the  Confarreation,  Coemption,  and 
Usus,  the  woman  passed  in  man  urn  ri/i,  that  is, 
m  law  she  became  the  Daitt/hkr  of  her  husband. 
She  was  included' ill  his  Patria  Potest  as.  She  in- 
curred all  the  liabilities  springing  out  of  it  while  ic 
subsisted,  and  surviving  it  when  it  had  expired. 


150     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap,  t 


All  her  property  became  absolutely  Lis,  and  she 
was  retained  in  tutelage  after  his  death  to  the 
guardian  whom  he  had  appointed  by  will.  These 
three  ancient  forms  of  marriage  fell,  however,  grad- 
ually into  disuse,  so  that,  at  the  most  splendid  pe- 
riod of  Roman  greatness,  they  had  almost  entirely 
given  place  to  a  fashion  of  wedlock — old  apparent- 
ly, but  not  hitherto  considered  reputable — which 
was  founded  on  a  modification  of  the  lower  form 
of  civil  marriage.  Without  explaining  the  techni- 
cal mechanism  of  the  institution  now  generally  pop- 
ular, I  may  describe  it  as  amounting  in  law  to  little 
more  than  a  temporary  deposit  of  the  woman  by 
her  family.  The  rights  of  the  family  remained  un- 
impaired, and  the  lady  continued  in  the  tutelage  of 
guardians  whom  her  parents  had  appointed  and 
whose  privileges  of  control  overrode,  in  many  ma- 
terial respects,  the  inferior  authority  of  her  hus- 
band. The  consequence  was  that  the  situation  of 
the  Roman  female,  whether  married  or  unmarried 
became  one  of  great  personal  and  proprietary  inde- 
pendence, for  the  tendency  of  the  later  law,  as  I 
have  already  hinted,  was  to  reduce  the  pow  er  of 
the  guardian  to  a  nullity,  while  the  form  of  mar- 
riage in  fashion  conferred  on  the  husband  no  com- 
pensating superiority.  But  Christianity  tended 
somewhat  from  the  very  first  to  narrow  this  re- 
markable liberty.  Led  at  first  by  justifiable  dis- 
relish for  the  loose  practice  of  the  decaying  heathen 
world,  but  afterwards  hurried  on  by  a  passion  of 


OHAP.  V 


CONDITION  OF  WOMEN 


151 


asceticism,  tlie  professors  of  the  new  faith  looked 
with  disfavour  on  a  marital  tie  which  was  in  fact 
the  laxest  the  Western  world  has  seen.  The  late  st 
Roman  law,  so  far  as  it  is  touched  by  the  Consti- 
tutions of  the  Christian  Emperors,  bears  soma 
marks  of  a  reaction  against  the  liberal  doctrines  of 
the  great  Antonine  jurisconsults.  And  the  prev- 
alent state  of  religious  sentiment  may  explain  why 
it  is  that  modern  jurisprudence,  forged  in  the  fur- 
nace of  barbarian  conquest,  and  formed  by  the  fu- 
sion of  Roman  jurisprudence  with  patriarchal  usage, 
has  absorbed,  among  its  rudiments,  much  more  than 
usual  of  those  rules  concerning  the  position  of 
women  which  belong  peculiarly  to  an  imperfect 
civilisation.  During  the  troubled  era  which  begins 
modern  history,  and  while  the  laws  of  the  Ger- 
manic and  Sclavonic  immigrants  remained  super- 
posed like  a  separate  layer  above  the  Roman  juris- 
prudence of  their  provincial  subjects,  the  women 
of  the  dominant  races  are  seen  everywhere  under 
various  forms  of  archaic  guardianship,  and  the  hus- 
band who  takes  a  wife  from  any  family  except  his 
own  pays  a  money-price  to  her  relations  for  the 
tutelage  which  they  surrender  to  him.  When  we 
move  onwards,  and  the  code  of  the  middle  ages  has 
been  formed  by  the  amalgamation  of  the  two  sys- 
tems, the  law  relating  to  women  carries  the  stamp 
:>f  its  double  origin.  The  principle  of  the  Roman 
jurisprudence  is  so  far  triumphant  that  unmarried 
females  are  generally  (though  there  are  local  excep- 


152     PRIMITIVE  SOCIETY  AXD  AXCIEXT  LAW.   chat,  v 


lions  to  the  rule)  relieved  from  the  bondage  of  the 
family ;  but  the  archaic  principle  of  the  barbarians 
has  fixed  the  position  of  married  women,  and  the 
husband  has  drawn  to  himself  in  his  marital  char- 
acter the  powers  which  had  once  belonged  to  his 
wife's  male  kindred,  the  only  difference  being  that 
he  no  longer  purchases  his  privileges.  At  this 
point  therefore  the  modern  law  of  Western  and 
Southern  Europe  begins  to  be  distinguished  by  one 
of  its  chief  characteristics,  the  comparative  freedom 
it  allows  to  unmarried  women  and  widows,  the 
heavy  disabilities  it  imposes  on  wives.  It  was  very 
long  before  the  subordination  entailed  on  the  other 
sex  by  marriage  was  sensibly  diminished.  The 
principal  and  most  powerful  solvent  of  the  revived 
barbarism  of  Europe  was  always  the  codified  juris- 
prudence of  Justinian,  wherever  it  was  studied  with 
that  passionate  enthusiasm  which  it  seldom  failed  to 
aw  aken.  It  covertly  but  most  efficaciously  under- 
mined the  customs  which  it  pretended  merely  to  in- 
terpret. But  the  Chapter  of  law  relating  to  mar- 
ried women  was  for  the  most  part  read  by  the  light, 
not  of  Roman,  but  of  Canon  Law,  which  in  no  one 
particular  departs  so  widely  from  the  spirit  of  the 
secular  jurisprudence  as  in  the  view  it  takes  of  the 
relations  created  by  marriage.  This  was  in  part 
inevitable,  since  no  society  which  preserves  any 
tincture  of  Christian  institution  is  likely  to  restore 
to  married  women  the  personal  liberty  conferred  on 
them  by  the  middle  Roman  law,  but  the  propria- 


CONDITION  OF  WOMEN. 


153 


tary  disabilities  of  married  females  stand  on  quite  a 
different  basis  from  their  personal  incapacities,  and 
it  is  by  the  tendency  of  their  doctrines  to  keep  alive 
and  consolidate  the  former,  that  the  expositors  of 
the  Canon  Law  have  deeply  injured  civilisation 
There  are  many  vestiges  of  a  struggle  between  the 
secular  and  ecclesiastical  principles,  but  the  Canon 
Law  nearly  everywhere  prevailed.  In  some  of  the 
French  provinces,  married  women,  of  a  rank  below 
nobility,  obtained  all  the  powers  of  dealing  with 
property  which  Roman  jurisprudence  had  allowed, 
and  this  local  law  has  been  largely  followed  by  the 
Code  Napoleon ;  but  the  state  of  the  Scottish  law 
shows  that  scrupulous  deference  to  the  doctrines  of 
the  Roman  jurisconsults  did  not  alw  ays  extend  to 
mitigating  the  disabilities  of  wives.  The  systems 
however  which  are  least  indulgent  to  married 
women  are  invariably  those  which  have  followed 
the  Canon  Law  exclusively,  or  those  which,  from 
the  lateness  of  their  contact  with  European  civilisa- 
tion, have  never  had  their  archaisms  weeded  out. 
The  Danish  and  Swedish  laws,  harsh  for  many  cen- 
turies to  all  females,  are  still  much  less  favourable 
to  wives  than  the  generality  of  Continental  codes. 
And  yet  more  stringent  in  the  proprietary  inca- 
pacities it  imposes  is  the  English  Common  Law, 
which  borrows  far  the  greatest  number  of  its  funda- 
mental principles  from  the  jurisprudence  of  the 
Canonists.  Indeed,  the  part  of  the  Common  Law 
which  prescribes  the  legal  situation  of  married 


154     PRIMITIVE  SOCIETY  AND  AXiTEXT  LAW.    ouav.  v 


women  may  serve  to  give  an  Englishman  clear  no- 
tions of  the  great  institution  which  has  been  the 
principal  subject  of  this  chapter.  I  do  not  know 
how  the  operation  and  nature  of  the  ancient  Patria 
Potestas  can  be  brought  so  vividly  before  the  mind 
as  by  reflecting  on  the  prerogatives  attached  to  the 
husband  by  the  pure  English  Common  Law,  and  by 
recalling  the  rigorous  consistency  with  which  the 
view  of  a  complete  legal  subjection  on  the  part  of 
the  wife  is  carried  by  it,  where  it  is  untouched  by 
equity  or  statutes,  through  every  department  of 
rights,  duties  and  remedies.  The  distance  between 
the  eldest  and  latest  Roman  law  on  the  subject  of 
Children  under  Power  may  be  considered  as  equiv- 
alent  to  the  difference  between  the  Common  Law 
and  the  jurisprudence  of  the  Court  of  Chancery  in 
the  rules  which  they  respectively  apply  to  wives. 

If  we  were  to  lose  sio-ht  of  the  true  origin  of 
Guardianship  in  both  its  forms,  and  were  to  employ 
the  common  language  on  these  topics,  we  should 
find  ourselves  remarking  that,  while  the  Tutelage 
of  Women  is  an  instance  in  which  systems  of  ar- 
chaic law  push  to  an  extravagant  length  the  fiction 
of  suspended  rights,  the  rules  which  they  lay  down 
for  the  Guardianship  of  Male  Orphans  are  an  ex- 
ample of  a  fault  in  precisely  the  opposite  direction. 
Such  systems  terminate  the  Tutelage  of  Males  at 
an  extraordinary  early  period.  Under  the  ancient 
Roman  law,  which  may  be  taken  as  their  type,  the 
Bon  who  was  delivered  from  Patria  Potestas  by  the 


chap.  v.  GUARDIANSHIP  OF  ORPHANS. 


155 


death  of  his  Father  or  Grandfather  remained  under 
guardianship  till  an  epoch  which  for  general  pur 
poses  may  he  described  as  arriving  with  his  fifteenth 
year;  but  the  arrival  of  that  epoch  placed  him  at 
once  in  the  full  enjoyment  of  personal  and  proprie- 
tary  independence.  The  period  of  minority  ap- 
pears therefore  to  have  been  as  unreasonably  short 
as  the  duration  of  the  disabilities  of  women  was 
preposterously  long.  But,  in  point  of  fact,  there 
was  no  element  either  of  excess  or  of  shortcomino: 
in  the  circumstances  which  gave  their  original  form 
to  the  two  kinds  of  guardianship.  Neither  the  one 
nor  the  other  of  them  was  based  on  the  slightest 
consideration  of  public  or  private  convenience.  The 
guardianship  of  male  orphans  was  no  more  de- 
signed originally  to  shield  them  till  the  arrival  of 
years  of  discretion  than  the  tutelage  of  women  was 
intended  to  protect  the  other  sex  against  its  own 
feebleness.  The  reason  why  the  death  of  the  father 
delivered  the  son  from  the  bondage  of  the  family 
was  the  son's  capacity  for  becoming  himself  the 
head  of  a  new  family  and  the  founder  of  a  new 
Patria  Potestas ;  no  such  capacity  was  possessed  by 
the  woman,  and  therefore  she  was  itaner  enfranchised. 
Accordingly  the  Guardianship  of  Male  Orphans 
was  a  contrivance  for  keeping  alive  the  semblance 
of  subordination  to  the  family  of  the  Parent,  up  to 
the  time  when  the  child  was  supposed  capable  of 
becoming  a  parent  himself.  It  was  a  prolongation 
of  the  Patria  Potestas  up  to  the  period  of  bare 


150     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap.  v. 


physical  manhood.  It  ended  with  puberty,  for  the 
rigour  of  the  theory  demanded  that  it  should  be  so. 
Inasmuch,  however,  as  it  did  not  profess  to  con- 
duct the  orphan  ward  to  the  age  of  intellectual 
maturity  or  fitness  for  affairs,  it  was  quite  unequal 
to  the  purposes  of  general  convenience ;  and  this 
the  Romans  seem  to  have  discovered  at  a  very 
early  stage  of  their  social  progress.  One  of  the 
very  oldest  monuments  of  Roman  legislation  is  the 
Lex  Lcetoria  or  Plcetoria,  which  placed  all  free 
males  who  were  of  full  years  and  rights  under  the 
temporary  control  of  a  new  class  of  guardians,  called 
Curatores,  whose  sanction  was  required  to  validate 
their  acts  or  contracts.  The  twenty-sixth  year  of 
the  young  man's  age  was  the  limit  of  this  statutory 
supervision  ;  and  it  is  exclusively  with  reference  to 
the  age  of  twenty-five  that  the  terms  "  majority " 
and  "  minority"  are  employed  in  Roman  law.  Pu- 
pilage or  wardship  in  modern  jurisprudence  has 
adjusted  itself  with  tolerable  regularity  to  the  sim- 
ple principle  of  protection  to  the  immaturity  of 
youth  both  bodily  and  mental.  It  has  its  natural 
termination  with  years  of  discretion.  But  for  pro- 
tection against  physical  weakness  and  for  protection 
against  intellectual  incapacity,  the  Romans  looked 
to  two  different  institutions,  distinct  both  in  theory 
and  design.  The  ideas  attendant  on  both  are  com- 
bined in  the  modern  idea  of  guardianship. 

The  Law  of  Persons  contains  but  one  other 
chapter  which  can  be  usefully  cited  for  our  present 


CHAP.  V. 


MASTER  AXD  SLATE. 


157 


purpose.  The  legal  rules  by  which  systems  of  ma 
ture  jurisprudence  regulate  the  connexion  of  Master 
and  Slave,  present  no  very  distinct  traces  of  the 
original  condition  common  to  ancient  societies.  But 
there  are  reasons  for  this  exception.  There  seems 
to  be  something  in  the  institution  of  Slavery  which 
has  at  all  times  either  shocked  or  perplexed  man- 
kind, however  little  habituated  to  reflection,  and 
however  slightly  advanced  in  the  cultivation  of  its 
moral  instincts.  The  compunction  which  ancient 
communities  almost  unconsciously  experienced  ap- 
pears to  have  always  resulted  in  the  adoption  of 
some  imaginary  principle  upon  which  a  defence,  or 
at  least  a  rationale,  of  slavery  could  be  plausibly 
founded.  Very  early  in  their  history  the  Greeks 
explained  the  institution  as  grounded  on  the  intel- 
lectual inferiority  of  certain  races  and  their  conse- 
quent natural  aptitude  for  the  servile  condition. 
The  Romans,  in  a  spirit  equally  characteristic,  de- 
rived it  from  a  supposed  agreement  between  the 
victor  and  the  vanquished  in  which  the  first  stipu- 
lated for  the  perpetual  services  of  his  foe  ;  and  the 
other  gained  in  consideration  the  life  which  he  had 
legitimately  forfeited.  Such  theories  were  not  only 
unsound  but  plainly  unequal  to  the  case  for  which 
they  affected  to  account.  Still  they  exercised  pow- 
erful influence  in  many  ways.  They  satisfied  the 
conscience  of  the  Master.  They  perpetuated  and 
probably  increased  the  debasement  of  the  Slave. 
And  they  naturally  tended  to  put  out  of  sight  the 


15S     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap.  v. 


relation  in  which  servitude  had  originally  stood  to 
the  rest  of  the  domestic  system.  The  relation, 
though  not  clearly  exhibited,  is  casually  indicated 
in  many  parts  of  the  primitive  law,  and  more  par- 
ticularly in  the  typical  system — that  of  ancient 
Rome. 

Much  industry  and  much  learning  have  been  be- 
stowed in  the  United  States  of  America  on  the 
question  whether  the  Slave  was  in  the  early  stages 
of  society  a  recognised  member  of  the  Family. 
There  is  a  sense  in  which  an  affirmative  answer 
must  certainly  be  given.  It  is  clear,  from  the  testi- 
mony both  of  ancient  law  and  of  many  primeval 
histories,  that  the  Slave  might  under  certain  con- 
ditions be  made  the  Heir,  or  Universal  Successor, 
of  the  Master,  and  this  significant  faculty,  as  I  shall 
explain  in  the  Chapter  on  Succession,  implies  that 
the  government  and  representation  of  the  Family 
might,  in  a  particular  state  of  circumstances,  de- 
volve on  the  bondman.  It  seems,  however,  to  be 
assumed  in  the  American  arguments  on  the  subject 
that,  if  we  allow  Slavery  to  have  been  a  primitive 
Family  institution,  the  acknowledgment  is  pregnant 
with  an  admission  of  the  moral  defensibility  of 
Negro-servitude  at  the  present  moment.  What 
then  is  meant  by  saying  that  the  Slave  was  origi- 
nally included  in  the  Family  ?  Not  that  his  situa- 
tion may  not  have  been  the  fruit  of  "the  coarsest 
motives  which  can  actuate  man.  The  simple  wish 
to  use  the  bodily  powers  of  another  person  as  a 


CHAP.  V. 


SLAVERY. 


159 


means -of  ministering  to  one's  own  ease  or  pleasure 
is  doubtless  the  foundation  of  Slavery,  and  as  old 
as  human  nature.  When  we  speak  of  the  Slave  as 
anciently  included  in  the  Family,  we  intend  to  as- 
sert nothing  as  to  the  motives  of  those  who  brought 
him  into  it  or  kept  him  there ;  we  merely  imply 
that  the  tie  which  bound  him  to  his  master  was  re- 
garded as  one  of  the  same  general  character  with 
that  which  united  every  other  member  of  the  group 
to  his  chieftain.  This  consequence  is,  in  fact,  carried 
in  the  general  assertion  already  made  that  the 
primitive  ideas  of  mankind  were  unequal  to  com- 
prehending any  basis  of  the  connexion  inter  se  of 
individuals,  apart  from  the  relations  of  family.  The 
Family  consisted  primarily  of  those  who  belonged 
to  it  by  consanguinity,  and  next  of  those  who  had 
been  engrafted  on  it  by  adoption ;  but  there  was 
still  a  third  class  of  persons  who  were  only  joined 
to  it  by  common  subjection  to  its  head,  and  these 
were  the  Slaves.  The  born  and  the  adopted  sub- 
jects of  the  chief  were  raised  above  the  Slave  by 
tlie  certainty  that  in  the  ordinary  course  of  events 
they  would  be  relieved  from  bondage  and  entitled 
to  exercise  powers  of  their  own  ;  but  that  the  in- 
feriority of  the  Slave  was  not  such  as  to  place  him 
outside  the  pale  of  the  Family,  or  such  as  to  de- 
grade him  to  the  footing  of  inanimate  property,  is 
clearly  proved,  I  think,  by  the.  many  traces  which 
remain  of  his  ancient  capacity  for  inheritance  in  the 
l.i>l  resort.    It  would,  of  course,  be  unsafe  in  tha 


100     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap,  v 


highest  degree  to  hazard  conjectures  how  far  the  lot 
of  the  Slave  was  mitigated,  iu  the  be<rinnini>;s  of  so- 
ciety,  by  having  a  definite  place  reserved  to  him  in 
the  empire  of  the  Father.  It  is,  perhaps,  more 
probable  that  the  son  was  practically  assimilated 
to  the  Slave,  than  that  the  Slave  shared  any  of  the 
tenderness  which  in  later  times  was  shown  to  the 
son.  But  it  may  be  asserted  with  some  confidence 
of  advanced  and  matured  codes  that,  wherever 
servitude  is  sanctioned,  the  slave  has  uniformly 
greater  advantages  under  systems  which  preserve 
some  memento  of  his  earlier  condition  than  under 
those  which  have  adopted  some  other  theory  of  his 
civil  degradation.  The  point  of  view  from  which 
jurisprudence  regards  the  Slave  is  always  of  great 
importance  to  him.  The  Roman  law  was  arrested 
in  its  growing  tendency  to  look  upon  him  more  and 
more  as  an  article  of  property  by  the  theory  of  the 
Law  of  Nature ;  and  hence  it  is  that,  wherever 
servitude  is  sanctioned  by  institutions  which  have 
been  deeply  affected  by  Roman  jurisprudence,  the 
servile  condition  is  never  intolerably  wretched 
There  is  a  great  deal  of  evidence  that  in  those 
American  States  which  have  taken  the  highly  Ro- 
manised code  of  Louisiana  as  the  basis  of  their  ju- 
risprudence, the  lot  and  prospects  of  the  Negro-pop 
ulation  were  better  in  many  material  respects,  until 
the  letter  of  the  fundamental  law  was  overlaid  by 
recent  statutory  enactments  passed  under  the  in- 
fluence of  panic,  than  under  institutions  founded  on 


OHAP.  V. 


ANCIENT  LAW. 


161 


the  English  Common  Law,  which,  as  recently  inter 
preted,  has  no  true  place  for  the  Slave,  and  can  only 
therefore  regard  liim  as  a  chattel. 

We  have  now  examined  all  parts  of  the  ancient 
Law  of  Persons  which  fall  within  the  scope  of  this 
tieatise,  and  the  result  of  the  inquiry  is,  I  trust,  to 
give  additional  definiteness  and  precision  to  our 
view  of  the  infancy  of  jurisprudence.  The  Civi] 
laws  of  States  first  make  their  appearance  as  the 
Themistes  of  a  patriarchal  sovereign,  and  we  can 
now  see  that  these  Themistes  are  probably  only 
a  developed  form  of  the  irresponsible  commands 
which,  in  a  still  earlier  condition  of  the  race,  the 
head  of  each  isolated  household  may  have  addressed 
to  his  wives,  his  children,  and  his  slaves.  But, 
even  after  the  State  has  been  organised,  the  laws 
have  still  an  extremely  limited  application.  Wheth- 
er they  retain  their  primitive  character  as  Themis- 
tes, or  whether  they  advance  to  the  condition  of 
Customs  or  Codified  Texts,  they  are  binding  not  on 
individuals,  but  on  Families,  Ancient  jurispru- 
dence, if  a  perhaps  deceptive  comparison  may  be 
employed,  may  be  likened  to  International  Law, 
filling  nothing,  as  it  were,  except  the  interstices  be- 
tween the  great  groups  which  are  the  atoms  of  so 
ciety.  In  a  community  80  situated,  the  legislation 
of  assemblies  and  the  jurisdiction  of  Courts  react 
only  to  the  heads  of  families,  and  to  every  other  in 
dividual  the  rule  of  conduct  is  the  law  of  his  home, 

of  which  his  Parent  is  the  legislator.     But  the 
11 


162     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    chap,  v 


sphere  of  civil  law,  small  at  first,  tends  steadily  to 
enlarge  itself.  The  agents  of  le«al  change,  Fictions, 
Equity,  and  Legislation,  are  brought  in  turn  to 
bear  on  the  primeval  institutions,  and  at  every  point 
of  the  progress,  a  greater  number  of  personal  rights 
and  a  larger  amount  of  property  are  removed  from 
the  domestic  forum  to  the  cognizance  of  the  public 
tribunals.  The  ordinances  of  the  government  ob- 
tain gradually  the  same  efficacy  in  private  concerns 
as  in  matters  of  state,  and  are  no  longer  liable  to  be 
overridden  by  the  behests  of  a  despot  enthroned  by 
each  hearthstone.  We  have  in  the  annals  of  Ro- 
man law  a  nearly  complete  history  of  the  crumbling 
away  of  an  archaic  system,  and  o.?  the  formation  of 
new  institutions  from  the  re-comb  ined  materials,  in- 
stitutions some  of  which  descended  unimpaired  to 
the  modern  world,  while  others,  destroyed  or  cor 
rupted  by  contact  with  barbariso  in  the  dark  ages, 
had  again  to  be  recovered  by  mankind.  When  we 
leave  this  jurisprudence  at  the  epoch  of  its  final  re- 
construction by  Justinian,  few  traces  of  archaism 
can  be  discovered  in  any  part  of  it  except  in  the 
single  article  of  the  extensive  powers  still  reserved 
to  the  living  Parent.  Everywhere  *>]se  principles 
of  convenience,  or  of  symmetry,  or  of  simplification 
— new  principles  at  any  rate — have  usurped  the 
authority  of  the  jejune  considerations  which  satis- 
fied the  conscience  of  ancient  times.  Even  where 
a  new  morality  lias  displaced  the  canons  of  conduct 
and  the  reasons  of  acquiescence  which  were  in  u?u*ou 


DISINTEGRATION  OF  THE  FAMILY. 


163 


with  the  ancient  usages,  because  in  fact  they  were 
born  of  them. 

The  movement  of  the  progressive  societies  has 
been  uniform  in  one  respect.  Through  all  its  course 
it  has  been  distinguished  by  the  gradual  dissolution 
of  family  dependency  and  the  growth  of  individual 
obligation  in  its  place.  The  individual  is  steadily 
substituted  for  the  Family,  as  the  unit  of  which  civil 
laws  take  account.  The  advance  has  been  accom- 
plished at  varying  rates  of  celerity,  and  there  are 
societies  not  absolutely  stationary  in  which  the  col- 
lapse of  the  ancient  organisation  can  only  be  perceiv- 
ed by  careful  study  of  the  phenomena  they  present. 
But,  whatever  its  pace,  the  change  has  not  been 
subject  to  reaction  or  recoil,  and  apparent  retarda- 
tions will  be  found  to  have  been  occasioned  through 
the  absorption  of  archaic  ideas  and  customs  from 
some  entirely  foreign  source.  Nor  is  it  difficult  to  see 
what  is  the  tie  between  man  and  man  which  replaces 
by  degrees  those  forms  of  reciprocity  in  rights  and 
duties  which  have  their  origin  in  the  Family.  It  is 
Contract.  Starting,  as  from  one  terminus  of  history, 
from  a  condition  of  society  in  which  all  the  relations 
of  Persons  are  summed  up  in  the  relations  of  Fami- 
ly, we  seem  to  have  steadily  moved  towards  a  phase 
of  social  order  in  which  all  these  relations  arise;  from 
the  free  agreement  of  individuals.  In  Western 
Europe  the  progress  achieved  in  this  direction  has 
been  considerable.  Thus  the  status  of  the  Slave  has 
disappeared — it  has  been  superseded  by  the  co.i- 


164     PRIMITIVE  SOCIETY  AND  ANCIENT  LAW.    cdap.  t 


traetual  relation  of  the  servant  to  his  master.  The 
status  of  the  Female  under  Tutelage,  if  the  tutelage 
be  understood  of  persons  other  than  her  husband, 
has  also  ceased  to  exist ;  from  her  coining  of  age  to 
her  marriage  all  the  relations  she  may  form  are  re- 
lations of  contract.  So  too  the  status  of  the  Sou 
under  Power  has  no  true  place  in  the  law  of  mod- 
ern European  societies.  If  any  civil  obligation 
binds  together  the  Parent  and  the  child  of  full  age, 
it  is  one  to  which  only  contract  gives  its  legal  validi- 
ty. The  apparent  exceptions  are  exceptions  of  that 
stamp  which  illustrate  the  rule.  The  child  before 
years  of  discretion,  the  orphan  under  guardianship, 
the  adjudged  lunatic,  have  all  their  capacities  and 
incapacities  regulated  by  the  Law  of  Persons.  But 
why  ?  The  reason  is  differently  expressed  in  the 
conventional  language  of  different  systems,  but  in 
substance  it  is  stated  to  the  same  effect  by  all. 
The  great  majority  of  Jurists  are  constant  to  the 
principle  that  the  classes  of  persons  just  mentioned 
are  subject  to  extrinsic  control  on  the  single  ground 
that  they  do  not  possess  the  faculty  of  forming  a 
judgment  on  their  own  interests  ;  in  other  words, 
that  they  are  wanting  in  the  first  essential  of  an  en- 
gagement by  Contract. 

The  word  Status  may  be  usefully  employed  to 
construct  a  formula  expressing  the  law  of  progress 
thus  indicated,  which,  whatever  be  its  value,  seems 
to  me  to  be  sufficiently  ascertained.  All  the  forms 
of  Stat  us  taken  notice  of  in  the  Law  of  Persona  were 


ciur.  v.   MOVEMENT  FROM  STATUS  TO  CONTRACT.  1G5 


derived  from,  and  to  some  extent  are  still  coloured 
by,  the  powers  and  privileges  anciently  residing  in 
the  Family.  If  then  we  employ  Status,  agreeably 
with  the  usage  of  the  best  writers,  to  signify  these 
personal  conditions  only,  and  avoid  applying  the 
term  to  such  conditions  as  are  the  immediate  or  re- 
mote result  of  agreement,  we  may  say  that  the  move- 
ment of  the  progressive  societies  has  hitherto  been  a 
movement  from  Status  to  Contract. 


CHAPTER  VI. 


TEE  EARLY  HISTORY  OF  TESTAMENTARY  SUCCESSION. 


If  an  attempt  were  made  to  demonstrate  iu  England 
the  superiority  of  the  historical  method  of  investiga- 
tion to  the  modes  of  inquiry  concerning  Jurispru- 
dence which  are  in  fashion  among  us,  no  department 
of  Law  would  better  serve  as  an  example  than  Tes- 
taments or  Wills.  Its  capabilities  it  owes  to  its 
great  length  and  great  continuity.  At  the  beginning 
of  its  history  we  find  ourselves  in  the  very  infancy 
of  the  social  state,  surrounded  by  conceptions  which 
it  requires  some  effort  of  mind  to  realise  in  their 
ancient  form  ;  while  here,  at  the  other  extremity  of 
its  line  of  progress,  we  are  in  the  midst  of  legal  no- 
tions which  are  nothing  more  than  those  same  con- 
ceptions disguised  by  the  phraseology  aud  by  the 
habits  of  thought  which  belong  to  modern  times, 
and  exhibiting  therefore  a  difficulty  of  another  kind, 
the  difficulty  of  believing  that  ideas  which  form 
part  of  our  every-day  mental  stock  can  really  stand 
in  need  of  analysis  and  examination.    The  growth 


CHAP.  TI. 


TESTAMENTARY  LAW. 


167 


of  the  Law  of  Wills  between  these  extreme  points 
can  be  traced  with  remarkable  distinctness.  It  was 
much  less  interrupted  at  the  epoch  of  the  birth  of 
feudalism,  than  the  history  of  most  other  branches 
of  Law.  It  is,  indeed,  true  that  as  regards  all  prov- 
inces of  jurisprudence,  the  break  caused  by  the 
division  between  ancient  and  modern  history,  or  in 
other  words  by  the  dissolution  of  the  Roman  empire, 
has  been  very  greatly  exaggerated.  Indolence  has 
disinclined  many  writers  to  be  at  the  pains  of  look- 
ing for  threads  of  connexion  entangled  and  ob- 
scured by  the  confusions  of  six  troubled  centuries, 
while  other  inquirers,  not  naturally  deficient  in  pa- 
tience and  industry,  have  been  misled  by  idle  pride 
in  the  legal  system  of  their  country,  and  by  conse- 
quent unwillingness  to  confess  its  obligations  to  the 
jurisprudence  of  Rome.  But  these  unfavourable 
influences  have  had  comparatively  little  effect  on  the 
province  of  Testamentary  Law.  The  barbarians 
were  confessedly  strangers  to  any  such  conception 
as  that  of  a  Will.  The  best  authorities  agree  that 
there  is  no  trace  of  it  in  those  parts  of  their  written 
codes  which  comprise  the  customs  practised  by  them 
in  their  original  seats  and  in  their  subsequent  settle- 
ments on  the  edge  of  the  Roman  Empire.  But 
soon  after  they  became  mixed  with  the  population 
of  the  Roman  provinces  they  appropriated  from  the 
Imperial  jurisprudence  the  conception  of  a  Will,  at 
first  in  part,  and  afterwards  in  all  its  integrity 
The  influence  of  the  Church  had  much  to  do  w  ith 


168 


INFLUENCE  OF  THE  CnURCTI. 


CITAP.  Tl 


tliis  rapid  assimilation.  The  ecclesiastical  power 
had  very  early  succeeded  to  those  privileges  of  cus- 
tody and  registration  of  Testaments  which  several 
of  the  heathen  temples  had  enjoyed  ;  and  even  thus 
early  it  was  almost  exclusively  to  private  bequests 
that  the  religious  foundations  owed  their  temporal 
possessions.  Hence  it  is  that  the  decrees  of  the 
earliest  Provincial  Councils  perpetually  contain  ana- 
themas against  those  who  deny  the  sanctity  of  Wills. 
Here,  in  England,  Church  influence  was  certainly 
chief  among  the  causes  which  by  universal  acknowl- 
edgment have  prevented  that  discontinuity  in  the 
history  of  Testamentary  Law  which  is  sometimes 
believed  to  exist  in  the  history  of  other  provinces 
of  Jurisprudence.  The  jurisdiction  over  one  class 
of  Wills  was  delegated  to  the  Ecclesiastical  Courts, 
which  applied  to  them,  though  not  always  intelli- 
gently, the  principles  of  Roman  jurisprudence;  and, 
though  neither  the  Courts  of  Common  Law  nor  the 
Court  of  Chancery  owned  any  positive  obligation  to 
follow  the  Ecclesiastical  tribunals,  they  could  not 
escape  the  potent  influence  of  a  system  of  settled 
rules  iu  course  of  application  by  their  side.  The 
English  law  of  testamentary  succession  to  personal- 
ty has  become  a  modified  form  of  the  dispensation 
under  which  the  inheritances  of  Roman  citizens 
were  administered. 

It  is  not  difficult  to  point  out  the  extreme  dif- 
ference of  the  conclusions  forced  on  us  by  the  histo- 
rical treatment  of  the  subject,  from  those  to  which 


cttap.  n. 


ANCIENT  WILLS. 


109 


we  are  conducted  when,  without  the  help  of  history, 
we  merely  strive  to  analyse  our  prima  facie  impres 
sions.  I  suppose  there  is  nobody  who,  starting  from 
the  popular  or  even  the  legal  conception  of  a  Will, 
would  not  imagine  that  certain  qualities  are  necessa- 
rily attached  to  it.  He  would  say,  for  example,  that 
a  Will  necessarily  takes  effect  at  death  only, — thatii 
is  secret,  not  known  as  a  matter  of  course  to  persons 
taking  interests  under  its  provisions, — that  it  is  revo 
cable,  i.  e.  always  capable  of  being  superseded  by  a 
new  act  of  testation.  Yet  I  shall  be  able  to  show 
that  there  was  a  time  when  none  of  these  characteris- 
tics belonged  to  a  Will.  The  Testaments  from  which 
our  Wills  are  directly  descended  at  first  took  effect 
immediately  on  their  execution ;  they  were  not  se- 
cret ;  they  were  not  revocable.  Few  legal  agencies 
are,  in  fact,  the  fruit  of  more  complex  historical 
agencies  than  that  by  which  a  man's  written  in- 
tentions control  the  posthumous  disposition  of  his 
goods.  Testaments  very  slowly  and  gradually  ga- 
thered around  them  the  qualities  I  have  mentioned  ; 
and  they  did  this  from  causes  and  under  pressure 
of  events  which  may  be  called  casual,  or  which  at 
any  rate  have  no  interest  for  us  at  present,  except, 
80  far  as  they  have  affected  the  history  of  law. 

At  a  time  when  legal  theories  were  more  abund- 
ant than  at  present,  —theories  which,  it  is  true,  were 
for  the  most  part  gratuitous  and  premature  enough, 
but  which  nevertheless  rescued  jurisprudence  from 
that  worse  and  more  ignoble  condition,  Dot  unknown 


170  NATURAL  RIGHT  OF  1ESTATION.       chap.  /i. 


to  ourselves,  in  wliieli  nothing  like  a  generalisation  is 
aspired  to,  and  law  is  regarded  as  a  mere  empirical 
pursuit — it  was  the  fashion  to  explain  the  ready 
and  apparently  intuitive  perception  which  we  have 
of  certain  qualities  in  a  Will,  by  saying  that  they 
were  natural  to  it,  or,  as  the  phrase  would  run  in 
full,  attached  to  it  by  the  Law  of  Nature.  Nobody, 
I  imagine,  would  affect  to  maintain  such  a  doctrine, 
when  once  it  was  ascertained  that  all  these  charac- 
teristics had  their  origin  within  historical  memory ; 
at  the  same  time,  vestiges  of  the  theory  of  which 
the  doctrine  is  an  offshoot,  linger  in  forms  of  express- 
ion which  we  all  of  us  use  and  perhaps  scarcely  know 
how  to  dispense  with.  I  may  illustrate  this  by  men- 
tioning a  position  common  in  the  legal  literature  of 
the  seventeenth  century.  The  jurists  of  that  period 
very  commonly  assert  that  the  power  of  Testation 
itself  is  of  Natural  Law,  that  it  is  a  right  conferred 
by  the  Law  of  Nature.  Their  teaching,  though  all 
persons  may  not  at  once  see  the  connexion,  is  in  sub- 
stance followed  by  those  who  affirm  that  the  right 
of  dictating  or  controlling  the  posthumous  disposal 
of  property  is  a  necessary  or  natural  consequence 
of  the  proprietary  rights  themselves.  And  every 
student  of  technical  jurisprudence  must  have  come 
across  the  same  view,  clothed  in  the  language  of  a 
rather  different  school,  which,  in  its  rationale  of  this 
department  of  law,  treats  succession  ex  testamento  aa 
the  mode  of  devolution  which  the  property  of  de- 
ceased persons  ought  primarily  to  follow,  and  then 


ciiap.  vl       NATURAL  RIGHT  OF  TESTATION. 


171 


proceeds  to  account  for  succession  ah  inte-stato  as  the 
incidental  provision  of  the  lawgiver  for  the  dis- 
charge of  a  function  which  was  only  left  unperform- 
ed through  the  neglect  or  misfortune  of  the  deceased 
proprietor.  These  opinions  are  only  expanded  forms 
of  the  more  compendious  doctrine  that  Testamen- 
tary disposition  is  an  institution  of  the  Law  of  Na- 
ture. It  is  certainly  never  quite  safe  to  pronounce 
dogmatically  as  to  the  range  of  association  embraced 
by  modern  minds,  when  they  reflect  on  Nature  and 
her  Law ;  but  I  believe  that  most  persons,  who  af- 
firm that  the  Testamentary  Power  is  of  Natural 
Law,  may  be  taken  to  imply  either  that,  as  a  matter 
of  fact,  it  is  universal,  or  that  nations  are  prompted 
to  sanction  it  by  an  original  instinct  and  impulse. 
With  respect  to  the  first  of  these  positions,  I  think 
that,  when  explicitly  set  forth,  it  can  never  be  se- 
riously contended  for  in  an  age  which  has  seen  the 
severe  restraints  imposed  on  the  Testamentary  Pow- 
er by  the  Code  Napoleon,  and  has  witnessed  the 
steady  multiplication  of  systems  for  which  the 
French  codes  have  served  as  a  model.  To  the  se- 
cond assertion  we  must  object  that  it  is  contrary  to 
the  best-ascertained  facts  in  the  early  history  of  law, 
and  I  venture  to  affirm  generally  that,  in  all  indi- 
genous societies,  a  condition  of  jurisprudence  in 
which  Testamentary  privileges  are  not  allowed,  or 
rather  not  contemplated,  has  preceded  that  later 
Btage  of  legal  development  in  which  the  mere  will 
of  the  proprietor  is  permitted  under  more  or  less  of 


172 


NATURE  OF  A  WILL. 


CHAP.  TU 


restriction  to  override  the  claims  of  his  kindred  in 
blood. 

The  conception  of  a  Will  or  Testament  cannot  be 
considered  by  itself.  It  is  a  member,  and  not  the 
first,  of  a  series  of  conceptions.  In  itself  a  Will  is 
simply  the  instrument  by  which  the  intention  of  the 
testator  is  declared.  It  must  be  clear,  I  think,  that 
before  such  an  instrument  takes  its  turn  for  discus- 
sion, there  are  several  preliminary  points  to  be  ex- 
amined— as  for  example,  what  is  it,  what  sort  of 
right  or  interest,  which  passes  from  a  dead  man  on 
his  decease  ?  to  whom  and  in  what  form  does  it  pass  ? 
and  how  came  it  that  the  dead  were  allowed  to  con- 
trol the  posthumous  disposition  of  their  property? 
Thrown  into  technical  language,  the  dependence  of 
the  various  conceptions  which  contribute  to  the  no- 
tion of  a  Will  is  thus  expressed.  A  Will  or  Testa- 
ment is  an  instrument  by  which  the  devolution  of 
an  inheritance  is  prescribed.  Inheritance  is  a  forn 
of  universal  succession.  A  universal  succession  is  a 
succession  to  a  universitas  juris,  or  university  of 
rights  and  duties.  Inverting  this  order  we  have 
therefore  to  inquire  what  is  a  universitas  juris ; 
what  is  a  universal  succession ;  what  is  the  form  of 
universal  succession  which  is  called  an  inheritance? 
And  there  are  also  two  further  questions,  indepen- 
dent to  some  extent  of  the  points  I  have  mooted, 
but  demanding  solution  before  the  subject  of  "Wills 
can  be  exhausted.  These  are,  how  came  an  inheri- 
tance to  be  controlled  in  any  case  by  the  testator's 


OHAP.  VI. 


UNIVERSITAS  JURIS. 


173 


volition,  and  what  is  the  nature  of  the  instrument 
by  which  it  came  to  be  controlled  ? 

The  first  question  relates  to  the  universitas  juris  ; 
that  is,  a  university  (or  bundle)  of  rights  and  duties. 
A  universitas  juris  is  a  collection  of  rights  aud  du 
ties  united  by  the  single  circumstance  of  their  having 
belonged  at  one  time  to  some  one  person.  It  is,  as  it 
were,  the  legal  clothing  of  some  given  individual.  It 
is  not  formed  by  grouping  together  any  rights  and 
any  duties.  It  can  only  be  constituted  by  taking  all 
the  rights  and  all  the  duties  of  a  particular  person. 
The  tie  which  connects  a  u umber  of  rights  of  pro- 
perty, rights  of  way,  rights  to  legacies,  duties  of 
specific  performance,  debts,  obligations  to  compensate 
wrongs — which  so  connects  all  these  legal  privileges 
and  duties  together  as  to  constitute  them  a  universi- 
tas juris,  is  the  fact  of  their  having  attached  to 
6ome  individual  capable  of  exercising  them.  With- 
out this  fact  there  is  no  university  of  rights  and 
duties.  The  expression  universitas  juris  is  not  clas- 
sical, but  for  the  notion  jurisprudence  is  exclusively 
indebted  to  Roman  law ;  nor  is  it  at  all  difficult  to 
seize.  We  must  endeavour  to  collect  under  one  con- 
ception the  whole  set  of  legal  relations  in  which 
each  one  of  us  stands  to  the  rest  of  the  world. 
These,  whatever  be  their  character  and  composition, 
make  up  together  a  universitas  juris  /  and  there  is 
but  little  danger  of  mistake  in  forming  the  notion, 
if  we  are  only  careful  to  remember  that  duties  enter 
into  it  quite  as  much  as  rights.    Our  duties  may 


174 


UNIVERSAL  SUCCESSION. 


CHAP.  TI, 


overbalance  3ur  rights.  A  man  may  owe  more  than 
he  is  worth,  and  therefore  if  a  money  value  is  set 
on  his  collective  legal  relations  he  may  be  what  is 
called  insolvent.  But  for  all  that,  the  entire  group 
of  rights  and  duties  which  centres  in  him  is  not  the 
less  a  "juris  universitas.,, 

We  come  next  to  a  "  universal  succession."  A 
universal  succession  is  a  succession  to  a  universitas 
juris.  Tt  occurs  when  one  man  is  invested  with  the 
legal  clothing  of  another,  becoming  at  the  same  mo- 
ment subject  to  all  his  liabilities  and  entitled  to  all 
his  rights.  In  order  that  the  universal  succession 
may  be  true  and  perfect,  the  devolution  must  take 
place  uno  tctu,  as  the  jurists  phrase  it.  It  is  of 
course  possible  to  conceive  one  man  acquiring  the 
whole  of  the  rights  and  duties  of  another  at  differ- 
ent periods,  as  for  example  by  successive  purchases ; 
or  he  might  acquire  them  in  different  capacities,  part 
as  heir,  part  as  purchaser,  part  as  legatee.  But 
though  the  group  of  rights  and  duties  thus  made  up 
should  in  fact  amount  to  the  whole  legal  personality 
of  a  particular  individual,  the  acquisition  would  not 
be  a  universal  succession.  In  order  that  there  may 
be  a  true  universal  succession,  the  transmission  must 
be  such  as  to  pass  the  whole  aggregate  of  rights  and 
duties  at  the  -same  moment  and  in  virtue  of  the  -same 
legal  capacity  in  the  recipient.  The  notion  of  a 
universal  succession,  like  that  of  a  juris  universitas, 
is  permanent  in  jurisprudence,  though  in  the  English 
legal  system  it  is  obscured  by  the  great  variety  of 


on  a  p.  vi. 


TEE  EXIYEESAL  SECCESSOE. 


175 


capacities  in  which  rights  are  acquired,  and,  above 
all,  by  the  distinction  between  the  two  great  prov- 
inces of  English  property,  ''realty1'  and  "personal- 
ty."  The  succession  of  an  assignee  in  bankruptcy 
to  the  entire  property  of  the  bankrupt  is,  however, 
a  universal  succession,  though  as  the  assignee  only 
pays  debts  to  the  extent  of  the  assets  this  is  only  a 
modified  form  of  the  primary  notion.  Were  it  com- 
mon among  us  for  persons  to  take  assignments  of 
all  a  man's  property  on  condition  of  paying  all  his 
debts,  such  transfers  would  exactly  resemble  the  uni- 
versal successions  known  to  the  oldest  Roman  Law. 
"When  a  Roman  citizen  adrogated  a  son,  i.  e.  took  a 
man,  not  already  under  Patria  Potestas,  as  his  adop- 
tive child,  he  succeeded  universally  to  the  adoptive 
child's  estate,  i.  e.  he  took  all  the  property  and  be- 
came liable  for  all  the  obligations.  Several  other 
forms  of  universal  succession  appear  in  the  primitive 
Roman  Law,  but  infinitely  the  most  important  and 
the  most  durable  of  all  was  that  one  with  which  we 
are  more  immediately  concerned,  HsBreditas  or  In- 
heritance. Inheritance  was  a  universal  succession 
occurring  at  a  death.  The  universal  successor  was 
Hares  or  Heir.  He  stepped  at  once  into  all  the 
rights  and  all  the  duties  of  the  dead  man.  He  was 
instantly  clothed  with  his  entire  legal  person,  and  I 
need  scarcely  add  that  the  special  character  of  the 
Hares  remained  the  same,  whether  he  was  named 
by  a  Will  or  whether  he  took  on  an  Intestacy.  The 
term  Haeres  is  no  more  emphatically  used  of  the 


170 


TIIE  HEIE. 


CHAP.  VI. 


Intestate  than  of  the  Testamentary  Heir,  for  the 
manner  in  which  a  man  became  Haeres  had  nothing 
to  do  with  the  legal  character  he  sustained.  The 
dead  man's  universal  successor,  however  he  became 
so,  whether  by  Will  or  by  Intestacy,  was  his  Heir. 
But  the  heir  was  not  necessarily  a  single  person. 
A  group  of  persons,  considered  in  law  as  a  sin- 
gle unit,  might  succeed  as  co-heirs  to  the  Inheri- 
tance. 

Let  me  now  quote  the  usual  Roman  definition 
of  an  Inheritance.  The  reader  will  be  in  a  position 
to  appreciate  the  full  force  of  the  separate  terms. 
Hoereditas  est  successio  in  universum  jus  quod  de- 
functus  lidbuit  (  uan  inheritance  is  a  succession  to 
the  entire  legal  position  of  a  deceased  man  ").  The 
notion  was  that  though  the  physical  person  of  the 
deceased  had  perished,  his  legal  personality  survived 
and  descended  unimpaired  on  his  Heir  or  Co-heirs, 
in  whom  his  identity  (so  far  as  the  law  was  con 
serned)  was  continued.  Our  own  law,  in  constitut- 
ing the  Executor  or  Administrator  the  representa- 
tive of  the  deceased  to  the  extent  of  his  personal 
assets,  may  serve  as  an  illustration  of  the  theory 
from  which  it  emanated  ;  but,  although  it  illustrates, 
it  does  not  explain  it.  The  view  of  even  the  later 
Roman  Law  required  a  closeness  of  correspondence 
between  the  position  of  the  deceased  and  of  his 
Heir  which  is  no  feature  of  an  English  representa- 
tion ;  and  in  the  primitive  jurisprudence  everything 
turned  on  the  continuity  of  succession.  Unless 


cnAP.  vi. 


PRIMITIVE  SOCIETY. 


177 


provision  was  made  in  the  will  for  the  instant  devo- 
lution of  the  testator's  lights  and  duties  on  the 
Heir  or  Co-heirs,  the  testament  lost  all  its  effect. 

In  modern  Testamentary  jurisprudence,  as  in  the 
later  Roman  law,  the  object  of  first  importance  is 
the  execution  of  the  testator's  intentions.  In  the 
ancient  law  of  Home  the  subject  of  corresponding  . 
carefulness  was  the  bestowal  of  the  Universal  Suc- 
cession. One  of  these  rules  seems  to  our  eyes  a 
principle  dictated  by  common  sense,  while  the  other 
looks  very  much  like  an  idle  crotchet.  Yet  that 
without  the  second  of  them  the  first  would  never 
have  come  into  being  is  as  certain  as  any  proposi- 
tion of  the  kind  can  be. 

In  order  to  solve  this  apparent  paradox,  and  to 
bring  into  greater  clearness  the  train  of  ideas  which 
I  have  been  endeavouring  to  indicate,  I  must  bor- 
row the  results  of  the  inquiry  which  was  attempted 
in  the  earlier  portion  of  the  preceding  chapter. 
We  saw  one  peculiarity  invariably  distinguishing 
the  infancy  of  society.  Men  are  regarded  and 
treated,  not  as  individuals,  but  always  as  member 
of  a  particular  group.  Everybody  is  first  :i  citizen, 
and  then,  as  a  citizen,  be  is  a  member  of  his  order 
— of  an  aristocracy  or  a  democracy,  of  an  order  of 
patricians  or  plebeians  ;  or  in  those  societies  which 
an  unhappy  fate  has  afflicted  with  a  special  perver- 
sion in  their  course  of  development,  <»('  a  caste. 
Next,  he  is  a  member  of  a  gens,  house,  or  clan  ;  and 
lastly,  he  is  a  member  of  his  family.  This  last  was 
12 


178 


THE  PRIMITIVE  FAMILY. 


CHAP.  VI 


the  narrowest  and  most  personal  relation  in  which 
he  stood ;  nor,  paradoxical  as  it  may  seem,  was  he 
ever  regarded  as  himself,  as  a  distinct  individual. 
His  individuality  was  swallowed  up  in  his  family. 
I  repeat  the  definition  of  a  primitive  society  given 
before.  It  has  for  its  units,  not  individuals,  hut 
groups  of  men  united  by  the  reality  or  the  fiction  of 
blood  -rel  at  ion  sh  ip. 

It  is  in  the  peculiarities  of  an  undeveloped 
society  that  we  seize  the  first  trace  of  a  universal 
succession.  Contrasted  with  the  organisation  of  a 
modern  state,  the  commonwealths  of  primitive  times 
may  be  fairly  described  as  consisting  of  a  number 
of  little  despotic  governments,  each  perfectly  dis- 
tinct from  the  rest,  each  absolutely  controlled  by 
the  prerogative  of  a  single  monarch.  But  though 
the  Patriarch,  for  we  must  not  yet  call  him  the 
Pater-familias,  had  rights  thus  extensive,  it  is  im- 
possible to  doubt  that  he  lay  under  an  equal  ampli 
tude  of  obligations.  If  he  governed  the  family,  i 
was  for  its  behoof.  If  he  was  lord  of  its  posses- 
sions, he  held  them  as  trustee  for  his  children  and 
kindred.  He  had  no  privilege  or  position  distinct 
from  that  conferred  on  him  by  his  relation  to  the 
petty  commonwealth  which  he  governed.  The 
Family,  in  fact,  was  a  Corporation  ;  and  he  was  its 
representative  or,  we  might  almost  say,  its  Public 
officer.  He  enjoyed  rights  and  stood  under  duties, 
bill  the  rights  and  duties  wore,  in  the  contempla« 
tion  of  his  fellow-citizens  and  in  the  eye  of  the  law, 


on.\p.  n.         TnE  FAMILY  A  CORPORATION". 


179 


quite  as  much  those  of  the  collective  body  as  his 
own.  Let  us  consider  for  a  moment,  the  effect 
-which  would  be  produced  by  the  death  of  such  it 
representative.  In  the  eye  of  the  law,  in  the  view 
of  the  civil  magistrate,  the  demise  of  the  domestic 
authority  would  be  a  perfectly  immaterial  event. 
The  person  representing  the  collective  body  of  the 
family  and  primarily  responsible  to  municipal  juris- 
diction would  bear  a  different  name ;  and  that 
would  be  all.  The  rights  and  obligations  which 
attached  to  the  deceased  head  of  the  house  would 
attach,  wit.  out  breach  of  continuity,  to  his  succes- 
sor ;  for,  in  point  of  fact,  they  would  be  the  rights 
and  obligations  of  the  family,  and  the  family  had 
the  distinctive  characteristic  of  a  corporation — that 
it  never  died.  Creditors  would  have  the  same 
remedies  against  the  new  chieftain  as  against  the 
old,  for  the  liability  being  that  of  the  still  existing 
family  would  be  absolutely  unchanged.  All  rights 
available  to  the  family  would  be  as  available  after 
the  demise  of  the  headship  as  before  it — except  that 
the  Corporation  would  be  obliged — if  indeed  lan- 
guage so  precise  and  technical  can  be  properly  used 
of  these  early  times — would  be  obliged  to  sue  under 
a  slightly  modified  name. 

The  history  of  jurisprudence  must  be  followed 
in  its  whole  course,  if  we  are  to  understand  how 
gradually  and  tardily  society  dissolved  itself  into 
the  component  atoms  of  which  it  is  now  constituted 
— by  what  insensible  gradations  the  relation  of  man 


ISO 


FAMILIES  AND  INDIVIDUALS. 


CHAP.  TL 


to  man  substituted  itself  for  the  relation  of  the  in 
dividual  to  his  family  and  of  families  to  each  other 
The  point  now  to  he  attended  to  is  that  even  -when 
the  revolution  had  apparently  quite  accomplished 
tself,  even  when  the  magistrate  had  in  great  meas- 
ure assumed  the  place  of  the  Pater-familias,  and  the 
civil  tribunal  substituted  itself  for  the  domestic 
forum,  nevertheless  the  whole  scheme  of  rights  and 
duties  administered  by  the  judicial  authorities  re- 
mained shaped  by  the  influence  of  the  obsolete 
privileges  and  coloured  in  every  part  by  their  reflec- 
tion. There  seems  little  question  that  the  devolu- 
tion of  the  Universitas  Juris,  so  strenuously  in- 
sisted upon  by  the  Roman  Law  as  the  first  condi- 
tion of  a  testamentary  or  intestate  succession,  was  a 
feature  of  the  older  form  of  society  which  men's 
minds  had  been  unable  to  dissociate  from  the  new, 
though  with  that  newer  phase  it  had  no  true  or 
proper  connection.  It  seems,  in  truth,  that  the  pro- 
longation of  a  man's  legal  existence  in  his  heir,  or 
in  a  group  of  co-heirs,  is  neither  more  nor  less  than 
a  characteristic  of  the  family  transferred  by  a  fiction 
to  the  individual.  Succession  in  corporations  is 
necessarily  universal,  and  the  family  was  a  corpora- 
tion. Corporations  never  die.  The  decease  of  in- 
dividual members  makes  no  difference  to  the  collec- 
tive existence  of  the  aggregate  body,  and  does  not 
in  any  way  affect  its  legal  incidents,  its  faculties  or 
liabilities.  Now  in  the  idea  of  a  Roman  universal 
succession  all  these  qualities  of  a  corporation  seem 


Oil  A  P.  VI. 


CORPORATIONS  SOLE. 


1S1 


to  Lave  been  transferred  to  the  individual  citizen, 
His  physical  death  is  allowed  to  exercise  no  effect 
on  the  legal  position  which  he  filled,  apparently  on 
the  principle  that  that  position  is  to  be  adjusted  as 
closely  as  possible  to  the  analogies  of  a  family, 
which  in  its  corporate  character  was  not  of  course 
liable  to  physical  extinction. 

I  observe  that  not  a  few  continental  jurists  have 
much  difficulty  in  comprehending  the  nature  of  the 
connection  between  the  conceptions  blended  in  a 
universal  succession,  and  there  is  perhaps  no  topic 
in  the  philosophy  of  jurisprudence  on  which  their 
speculations,  as  a  general  rule,  possess  so  little 
value.  But  the  student  of  English  law  ouo-ht  to  be 
in  no  danger  of  stumbling  at  the  analysis  of  the 
idea  which  we  are  examining.  Much  liffht  is  cast 
upon  it  by  a  fiction  in  our  own  system  with  which 
all  lawyers  are  familiar.  English  lawyers  classify 
corporations  as  Corporations  aggregate  and  Corpora- 
tions sole.  A  Corporation  aggregate  is  a  true  cor- 
poration, but  a  Corporation  sole  is  an  individual, 
being  a  member  of  a  series  of  individuals,  who  is 
invested  by  a  fiction  with  the  qualities  of  a  Cor- 
poration. I  need  hardly  cite  the  King  or  the  Par- 
son of  a  Parish  as  instances  of  Corporations  sole. 
The  capacity  or  office  is  here  considered  apart  from 
the  particular  person  who  from  time  to  time  may 
occupy  it,  and,  this  capacity  being  perpetual,  the 
series  of  individuals  who  fill  it  are  clothed  with, 
the  leading  attribute  of  Corporations — Perpetuity"! 


182 


CORPORATIONS  SOLE. 


CHAP.  Tl 


Now  in  the  older  theory  of  Roman  Law  tlie  indi 
vidua]  bore  to  the  family  precisely  the  same  relation 
which  in  the  rationale  of  English  jurisprudence  a 
Corporation  sole  bears  to  a  Corporation  aggregate. 
The  derivation  and  association  of  ideas  are  exactly 
the  same.  In  fact,  if  we  say  to  ourselves  that  for 
purposes  of  Roman  Testamentary  Jurisprudence 
each  individual  citizen  was  a  Corporation  sole,  we 
shall  not  only  realize  the  full  conception  of  an  in- 
heritance, but  have  constantly  at  command  the  clue 
to  the  assumption  in  which  it  originated.  It  is  an 
axiom  with  us  that  the  Kins;  never  dies,  being 
a  Corporation  sole.  His  capacities  are  instantly 
filled  by  his  successor,  and  the  continuity  of  domin- 
ion is  not  deemed  to  have  been  interrupted.  With 
the  Romans  it  seemed  an  equally  simple  and  natural 
process,  to  eliminate  the  fact  of  death  from  the  devo- 
lution of  rights  and  obligations.  The  testator  lived 
on  in  his  heir  or  in  the  group  of  his  co-heirs.  He 
was  in  law  the  same  person  with  them,  and  if  any 
one  in  his  testamentary  dispositions  had  even  con- 
structively violated  the  principle  which  united  his 
actual  and  his  posthumous  existence,  the  law  re- 
jected the  defective  instrument,  and  gave  the  in- 
heritance to  the  kindred  in  blood,  whose  capacity  to 
fulfil  the  conditions  of  heirship  was  conferred  on 
them  by  the  law  itself,  and  not  by  any  document 
which  by  possibility  might  be  erroneously  framed. 

When  a  Roman  citizen  died  intestate  or  leaving 
no  valid  Will,  his  descendants  or  kindred  became 


;uxp.  vl 


IXTESTATE  SUCCESSION. 


isa 


his  Leirs  according  to  a  scale  which  will  be  present- 
ly described.  The  person  or  class  of  persons  who 
succeeded  did  not  simply  represent  the  deceased, 
but,  in  conformity  'with  the  theory  just  delineated, 
they  continued  his  civil  life,  his  legal  existence. 
The  same  results  followed  when  the  order  of  suc- 
cession was  detennined  by  a  Will,  but  the  theory 
of  the  identity  between  the  dead  man  and  his  heirs 
was  certainly  much  older  than  any  form  of  Testa- 
ment or  phase  of  Testamentary  jurisprudence.  This 
indeed  is  the  proper  moment  for  suggesting  a  doubt 
which  will  press  on  us  with  greater  force  the  farther 
we  plumb  the  depths  of  this  subject — whether  wills 
would  ever  have  come  into  bein^  at  all  if  it  had  not 
been  for  these  remarkable  ideas  connected  with  uni- 
versal succession.  Testamentary  law  is  the  applica- 
tion of  a  principle  which  may  be  explained  on  a  va- 
riety of  philosophical  lrypotheses  as  plausible  as 
they  are  gratuitous ;  it  is  interwoven  with  every 
part  of  modem  society,  and  it  is  defensible  on  the 
broadest  grounds  of  general  expediency.  But  the 
warning  can  never  be  too  often  repeated,  that  the 
grand  source  of  mistake  in  questions  of  jurispru- 
dence is  the  impression  that  those  reasons  which 
actuate  us  at  the  present  moment,  in  the  main 
tenance  of  an  existing  institution,  have  necessarily 
anything  in  common  with  the  sentiment  in  which 
the  institution  originated.  It  is  certain  that,  in  the 
old  Roman  Law  of  Inheritance,  the  notion  of  a  will 
or  testament  is  inextricably  mixed  up,  I  might 


184 


SUCCESSION  TO  THE  FAMILY. 


CHAP.  VI. 


almost  say  confounded,  with  the  theory  of  a  man's 
posthumous  existence  in  the  person  of  his  heir. 

The  conception  of  a  universal  succession,  firmly 
as  it  has  taken  root  in  jurisprudence,  has  not  oc 
curred  spontaneously  to  the  framers  of  every  body 
of  laws.  Wherever  it  is  now  found,  it  may  l>e 
shown  to  have  descended  from  Roman  law ;  and 
with  it  have  come  down  a  host  of  legal  rules  on  the 
sul  ject  of  Testaments  and  Testamentary  gifts,  which 
modern  practitioners  apply  without  discerning  their 
relation  to  the  parent  theory.  But,  in  the  pure 
Roman  jurisprudence,  the  principle  that  a  man  lives 
on  in  his  Heir — the  elimination,  if  we  may  so  speak, 
of  the  fact  of  death — is  too  obviously  for  mistake 
the  centre  round  which  the  whole  Law  of  Testa- 
mentary and  Intestate  succession  is  circling.  The 
unflinching  sternness  of  the  Roman  law  in  enforcing 
compliance  with  the  governing  theory  would  in  it- 
self suggest  that  the  theory  grew  out  of  something 
in  the  primitive  constitution  of  Roman  society  ;  but 
we  may  push  the  proof  a  good  way  beyond  the 
presumption.  It  happens  that  several  technical  ex- 
pressions, dating  from  the  earliest  institutions  of 
"Wills  at  Rome,  have  been  accidentally  preserved 
to  us.  We  have  in  Gaius  the  formula  of  investiture 
by  which  the  universal  successor  w  as  created.  We 
have  the  ancient  name  by  which  the  person  after- 
wards called  Heir  was  at  first  designated.  We 
have  further  the  text  of  the  celebrated  clause  in 
the  Twelve  Tables  by  which  the  Testamentary 


en  a  p.  vi.  ORIGINAL  OBJECT  OF  WILLS. 


power  was  expressly  recognised,  and  the  clauses 
regulating  Intestate  Succession  have  also  been  pre- 
served. All  these  archaic  phrases  have  one  salient 
peculiarity.  They  indicate  that  what  passed  from 
the  Testator  to  the  Heir  was  the  Family,  that  is, 
the  aggregate  of  rights  and  duties  contained  in  the 
Patria  Potestas  and  growing  out  of  it.  The  ma- 
terial property  is  in  three  instances  not  mentioned 
at  all ;  in  two  others,  it  is  visibly  named  as  an 
adjunct  or  appendage  of  the  Family.  The  original 
"Will  or  Testament  was  therefore  an  instrument,  or 
(for  it  was  probably  not  at  first  in  writing)  a  pro- 
ceeding by  which  the  devolution  of  the  Family  was 
regulated.  It  was  a  mode  of  declaring  who  was  to 
have  the  chieftainship,  in  succession  to  the  Testator. 
"When  "Wills  are  understood  to  have  this  for  their 
original  object,  we  see  at  once  how  it  is  that  they 
came  to  be  connected  with  one  of  the  most  curious 
relics  of  ancient  religion  and  law,  the  sacra,  or 
Family  Kites.  These  sacra  were  the  Roman  form 
of  an  institution  which  shows  itself  wherever  society 
has  not  wholly  shaken  itself  free  from  its  primitive 
clothing.  They  are  the  sacrifices  and  ceremonies 
by  which  the  brotherhood  of  the  family  is  commem- 
orated, the  pledge  and  the  witness  of  its  perpetuity. 
Whatever  be  their  nature, — whether  it  be  true  01 
not  that  in  all  cases  they  are  the  worship  of  some 
mythical  ancestor, — they  are  everywhere  employed 
to  attest  the  sacivdncss  of  the  family  relation  ;  and 
therefore  they  acquire  prominent  significance  and 


186 


THE  HINDOO  SACRA. 


cnAi*.  vc, 


importance,  whenever  tlie  continuous  existence  of 
the  Family  is  endangered  by  a  change  in  the  persor 
of  its  chief.  Accordingly,  we  hear  most  about  them 
in  connection  with  demises  of  domestic  sovereignty. 
Amouo-  the  Hindoos,  the  ri^ht  to  inherit  a  dead 
man's  property  is  exactly  co-extensive  with  the  duty 
of  performing  his  obsequies.  If  the  rites  are  not 
properly  performed  or  not  performed  hy  the  proper 
person,  no  relation  is  considered  as  established  be- 
tween the  deceased  and  anybody  surviving  him ; 
the  Law  of  Succession  does  not  apply,  and  nobody 
can  inherit  the  property.  Every  great  event  in  the 
life  of  a  Hindoo  seems  to  be  regarded  as  leading  up 
to  and  bearing  upon  these  solemnities.  If  he  mar- 
ries, it  is  to  have  children  who  may  celebrate  them 
after  his  death ;  if  he  has  no  children,  he  lies  under 
the  strongest  obligation  to  adopt  them  from  another 
family,  "  with  a  view,"  writes  the  Hindoo  doctor, 
"  to  the  funeral  cake,  the  water,  and  the  solemn 
sacrifice."  The  sphere  preserved  to  the  Roman 
sacra  in  the  time  of  Cicero,  was  not  less  in  extent. 
It  embraced  Inheritances  and  Adoptions.  No 
Adoption  was  allowed  to  take  place  without  due 
provision  for  the  sacra  of  the  family  from  which  the 
adoptive  son  was  transferred,  and  no  Testament  was 
allowed  to  distribute  an  Inheritance  without  a  strict 
apportionment  of  the  expenses  of  these  ceremonies 
among  the  different  co-heirs.  The  differences  be- 
tween the  Roman  law  at  this  epoch,  when  we  obtain 
our  last  glimpse  of  the  sacra,  and  the  existing  Ilin 


3hap.  vi.         ROMAN  AND  HINDOO  SACRA. 


187 


doo  system,  are  most  instructive.  Among  the  Hin- 
doos, the  religious  element  in  law  lias  acquired  a 
complete  predominance.  Family  sacrifices  have  be- 
come the  keystone  of  all  the  Law  of  Persons  and 
much  of  the  Law  of  Things.  They  have  even  re- 
ceived a  monstrous  extension,  for  it  is  a  plausible 
opinion  that  the  self-immolation  of  the  widow  at 
her  husband's  funeral,  a  practice  continued  to  his- 
torical times  by  the  Hindoos,  and  commemorated  in 
the  traditions  of  several  Indo-European  races,  was 
an  addition  grafted  on  the  primitive  sacra  under  the 
influence  of  the  impression,  which  always  accom- 
panies the  idea  of  sacrifice,  that  human  blood  is  the 
most  precious  of  all  oblations.  With  the  Romans, 
on  the  contrary,  the  legal  obligation  and  the  re- 
ligious duty  have  ceased  to  be  blended.  The  neces- 
sity of  solemnising  the  sacra  forms  no  part  of  the 
theory  of  civil  law,  but  they  are  under  the  separate 
jurisdiction  of  the  College  of  Pontiffs.  The  letters 
of  Cicero  to  Atticus,  which  are  full  of  allusions 
to  them,  leave  no  doubt  that  they  constituted  an  in- 
tolerable burden  on  Inheritances ;  but  the  point  of 
development  at  which  law  breaks  away  from  reli- 
gion has  been  passed,  and  we  are  prepared  for  their 
entire  disappearance  from  the  later  jurisprudence. 

In  Hindoo  law  there  is  no  such  thin?  as  a  true 
Will.  The  place  filled  by  Wills  is  occupied  by 
Adoptions.  We  can  now  see  the  relation  of  the 
Testamentary  Power  to  the  Faculty  of  Adoption, 
and  the  reason  why  the  exercise  of  either  of  them 


138 


WILLS  AND  ADOPTIONS.  cdap.  tt. 


could  call  up  a  peculiar  solicitude  for  the  perform 
auce  of  the  sacra.  Both  a  Will  and  an  Adoption 
threaten  a  distortion  of  the  ordinary  course  of  Fain 
ily  descent,  but  they  are  obviously  contrivances  for 
preventing  the  descent  being  wholly  interrupted 
when  there  is  no  succession  of  kindred  to  carry  it 
on.  Of  the  two  expedients  Adoption,  the  factitious 
creation  of  blood-relationship,  is  the  only  one  which 
has  suggested  itself  to  the  greater  part  of  archaic 
societies.  The  Hindoos  have  indeed  advanced  one 
point  on  what  was  doubtless  the  antique  practice, 
by  allowing  the  widow  to  adopt  when  the  father 
has  neglected  to  do  so,  and  there  are  in  the  local 
customs  of  Bengal  some  faint  'traces  of  the  Testa- 
mentary powers.  But  to  the  Romans  belongs  pre- 
eminently the  credit  of  inventing  the  Will,  the  in- 
stitution which,  next  to  the  Contract,  has  exercised 
the  greatest  influence  in  transforming  human  so- 
ciety. We  must  be  careful  not  to  attribute  to  it  in 
its  earliest  shape  the  functions  which  have  attended 
it  in  more  recent  times.  It  wTas  at  first  not  a  mode 
of  distributing  a  dead  man's  goods,  but  one  among 
several  ways  of  transferring  the  representation  of 
the  household  to  a  new  chief.  The  goods  descend 
no  doubt  to  the  Heir,  but  that  is  only  because  the 
government  of  the  family  carries  with  it  in  its  devo- 
lution the  power  of  disposing  of  the  common  stock. 
We  are  very  far  as  yet  from  that  stage  in  the  his- 
tory of  Wills,  in  which  they  become  powerful  instru- 
ments in  modifying  society  through  the  stimulus 


CHAP.  vr. 


ROMAN  IDEAS  OF  SUCCESSION. 


189 


they  give  to  the  circulation  of  property  and  the 
plasticity  they  produce  in  proprietary  rights.  No 
such  consequences  as  these  appear  in  fact  to  have 
been  associated  with  the  Testamentary  power  even 
by  the  latest  Roman  lawyers.  It  will  be  found 
that  Wills  were  never  looked  upon  in  the  Roman 
community  as  a  contrivance  for  parting  Property 
and  the  Family,  or  for  creating  a  variety  of  miscel- 
laneous interests,  but  rather  as  a  means  of  making  a 
better  provision  for  the  members  of  a  household 
than  could  be  secured  through  the  rules  of  Intestate 
succession.  We  may  suspect  indeed  that  the  asso- 
ciations of  a  Roman  with  the  practice  of  will-mak- 
ing were  extremely  different  from  those  familiar  to 
us  nowadays.  The  habit  of  regarding  Adoption 
and  Testation  as  modes  of  continuing  the  Family 
cannot  but  have  had  something  to  do  with  the 
singular  laxity  of  Roman  notions  as  to  the  inherit- 
ance of  sovereignty.  It  is  impossible  not  to  see 
that  the  succession  of  the  early  Roman  Emperors  to 
each  other  was  considered  reasonably  regular,  and 
that,  in  spite  of  all  that  had  occurred,  no  absurdity 
attached  to  the  pretension  of  such  Princes  as  Theo- 
dosius  or  Justinian  to  style  themselves  Caesar  and 
Augustus. 

When  the  phenomena  of  primitive  societies 
emerge  into  light,  it  seems  impossible  to  dispute  a 
proposition  which  the  jurists  of  the  seventeenth 
sentury  considered  doubtful,  that  Intestate  Inheri- 
tance is  a  more  ancient  institution  than  Testamen 


190  RARITY  OF  TESTAMENTARY  POWER,    chap.  ti. 


tary  Succession.  As  soon  as  this  is  settled,  a  ques« 
tion  of  much  interest  suggests  itself,  how  and  under 
what  conditions  were  the  directions  of  a  will  first 
allowed  to  regulate  the  devolution  of  authority- 
over  the  household,  and  consequently  the  posthu- 
mous distribution  of  property.  The  difficulty  of 
deciding  the  point  arises  from  the  rarity  of  Testa- 
mentary power  in  archaic  communities.  It  is  doubt- 
ful whether  a  true  power  of  testation  was  known 
to  any  original  society  except  the  Roman.  Rudi- 
mentary forms  of  it  occur  here  and  there,  but  most 
of  them  are  not  exempt  from  the  suspicion  of  a 
Roman  origin.  The  Athenian  Will  was,  no  doubt, 
indigenous,  but  then,  as  will  appear  presently,  it 
was  only  an  inchoate  Testament.  As  to  the  Wills 
which  are  sanctioned  by  the  bodies  of  law  which 
have  descended  to  us  as  the  codes  of  the  barbarian 
conquerors  of  imperial  Rome,  they  are  almost  cer- 
tainly Roman.  The  most  penetrating  German  crit- 
icism has  recently  been  directed  to  these  leges  J'>ar- 
bworvm,  the  great  object  of  investigation  being  to 
detach  those  portions  of  each  system  which  formed 
the  customs  of  the  tribe  in  its  original  home  from  the 
adventitious  ingredients  which  were  borrowed  from 
the  laws  of  the  Romans.  In  the  course  of  this  pro- 
cess, one  result  has  invariably  disclosed  itself,  that 
the  ancient  nucleus  of  the  code  contains  no  trace 
of  a  Will.  Wrhatever  testamentary  law  exists,  has 
been  taken  from  Roman  jurisprudence.  Similarly, 
the  rudimentary  Testament  which  (as  I  am  inform- 


chap.  vi.      PRIMITIVE  OPERATION  OF  WILLS. 


191 


eel)  the  Rabbinical  Jewish  law  provides  for,  has 
been  attributed  to  contact  with  the  Romans.  The 
only  form  of  testament,  not  belonging  to  a  Roman 
or  Hellenic  society,  which  can  reasonably  be  sup- 
posed indigenous,  is  that  recognised  by  the  usages 
of  the  province  of  Bengal ;  and  the  testament  of 
Bengal  is  only  a  rudimentary  Will. 

The  evidence,  however,  such  as  it  is,  seems  to 
point  to  the  conclusion  that  Testaments  are  at  first 
only  allowed  to  take  effect  on  failure  of  the  persons 
entitled  to  have  the  inheritance  by  right  of  blood 
genuine  or  fictitious.  Thus,  when  Athenian  citi- 
zens were  empowered  for  the  first  time  by  the 
Laws  of  Solon  to  execute  Testaments,  they  were 
forbidden  to  disinherit  their  direct  male  descen- 
dants. So,  too,  the  Will  of  Bengal  is  only  per- 
mitted to  govern  the  succession  so  far  as  it  is  con- 
sistent with  certain  overriding  claims  of  the  family. 
Again,  the  original  institutions  of  the  Jews  having 
provided  nowhere  for  the  privileges  of  Testator- 
ship,  the  later  Rabbinical  jurisprudence,  which  pre 
tends  to  suply  the  casus  omissi  of  the  Mosaic  law, 
allows  the  power  of  Testation  to  attach  when  all 
the  kindred  entitled  under  the  Mosaic  system  to 
succeed  have  failed  or  are  undiscoverable.  The 
limitations  by  which  the  ancient  German  codes 
hedge  in  the  testamentary  jurisprudence  which  has 
been  incorporated  with  them  arc  also  significant, 
and  point  in  the  same  direction.  It  is  the  peculiar- 
ty  of  most  of  these  German  laws,  in  the  only  shape 


192 


OLD  GERMANIC  WILLS. 


CHAP.  VL 


in  which  wo  know  them,  that,  besides  the  dllod  or 
domain  of  each  household,  they  recognise  several 
subordinate  kinds  or  orders  of  property,  each  of 
which  probably  represents  a  separate  transfusion 
of  Roman  principles  into  the  primitive  body  of 
Teutonic  usage.  The  primitive  German  or  allodial 
property  is  strictly  reserved  to  the  kindred.  Not 
only  is  it  incapable  of  being  disposed  of  by  testa- 
ment, but  it  is  scarcely  capable  of  being  alienated 
by  conveyance  inter  vivos.  The  ancient  German 
law,  like  the  Hindoo  jurisprudence,  makes  the  male 
children  co-proprietors  with  their  father,  and  the 
endowment  of  the  family  cannot  be  parted  with  ex- 
cept by  the  consent  of  all  its  members.  But  the 
other  sorts  of  property,  of  more  modern  origin  and 
lower  dignity  than  the  allodial  possessions,  are 
much  more  easily  alienated  than  they,  and  follow 
much  more  lenient  rules  of  devolution.  Women 
and  the  descendants  of  women  succeed  to  them,  ob- 
viously on  the  principle  that  they  lie  outside  the 
sacred  precinct  of  the  Agnatic  brotherhood.  Now, 
it  is  on  these  last  descriptions  of  property,  and  on 
these  only,  that  the  Testaments  borrowed  from 
Rome  were  at  first  allowed  to  operate. 

These  few  indications  may  serve  to  lend  addi- 
tional plausibility  to  that  which  in  itself  appears  to 
be  the  most  probable  explanation  of  an  ascertained 
fact  in  the  earl)  history  of  Roman  wills.  We  have 
it  stated  on  abundant  authority  that  Testaments, 
during  the  primitive  period  of  the  Roman  State, 


cnAi'.  vi. 


THE  COMITIA  CALATA. 


193 


were  executed  in  the  Coinitia  Calata,  that  is,  in  the 
Comitia  Curiata,  or  Parliament  of  the  Patrician 
Burghers  of  Rome,  when  assembled  for  Private 
Business.  This  mode  of  execution  has  been  the 
source  of  the  assertion,  handed  down  by  one  gen- 
eration of  civilians  to  another,  that  every  Will  at 
one  era  of  Roman  histoiy  was  a  solemn  legislative 
enactment.  But  there  is  no  necessity  whatever  for 
resorting  to  an  explanation  which  has  the  defect  of 
attributing  far  too  much  precision  to  the  proceed- 
ing of  the  ancient  assembly.  The  proper  key  to 
the  story  concerning  the  execution  of  Wills  in  the 
Coinitia  Calata  must  no  doubt  be  sought  in  the 
oldest  Roman  Law  of  intestate  succession.  The 
canons  of  primitive  Roman  jurisprudence  regulating 
the  inheritance  of  relations  from  each  other  were,  so 
long  as  they  remained  unmodified  by  the  Edictal 
Law  of  the  Praetor,  to  the  following  effect : — First, 
the  aui  or  direct  descendants  who  had  never  been 
emancipated  succeeded.  On  the  failure  of  the  sui, 
the  Nearest  Agnate  came  into  their  place,  that  is, 
the  nearest  person  or  class  of  the  kindred  who  was 
or  might  have  been  under  the  same  Patria  Potestas 
with  the  deceased.  The  third  and  last  degree  came 
next,  in  which  the  inheritance  devolved  on  the  gen- 
til<  \-,  that  is,  on  the  collective  members  of  the  dead 
man's  gem  or  House.  The  House,  I  have  explained 
already,  was  a  fictitious  extension  of  the  family, 
consisting  of  all  Roman  Patrician  citizens  who  bore 
the  same  name,  and  who  on  the  ground  of  bearin" 
13 


194 


JURISDICTION"  OF  THE  COMITIA. 


CHAP.  TX 


tlie  same  name,  were  supposed  to  be  descended 
from  a  common  ancestor.  Now  the  Patrician  As- 
sembly called  the  Comitia  Curiata  was  a  Legisla- 
ture in  which  Gentes  or  Houses  were  exclusively 
represented.  It  was  a  representative  assembly  of 
the  Roman  people,  constituted  on  the  assumption 
that  the  constituent  unit  of  the  state  was  the  Gens. 
This  being  so,  the  inference  seems  inevitable,  that 
the  cognisance  of  Wills  by  the  Comitia  was  con- 
nected with  the  rights  of  the  Gentiles,  and  was  in- 
tended to  secure  them  in  their  privilege  of  ultimate 
inheritance.  The  whole  apparent  anomaly  is  re- 
moved, if  we  suppose  that  a  Testament  could  only 
be  made  when  the  testator  had  no  gentiles  discov- 
erable, or  when  they  waived  their  claims,  and  that 
every  Testament  was  submitted  to  the  General  As- 
sembly of  the  Roman  Gentes,  in  order  that  those 
aggrieved  by  its  dispositions  might  put  their  veto 
upon  it  if  they  pleased,  or  by  allowing  it  to  pas 
might  be  presumed  to  have  renounced  their  rever- 
sion. It  is  possible  that  on  the  eve  of  the  publica- 
tion of  the  Twelve  Tables  this  vetoing  power  may 
have  been  greatly  curtailed  or  only  occasionally  and 
capriciously  exercised.  It  is  much  easier,  however, 
to  indicate  the  meaning  and  origin  of  the  jurisdic- 
tion confided  to  the  Comitia  Calata,  than  to  trace 
its  gradual  development  or  progressive  decay. 

The  Testament  to  which  the  pedigree  of  all 
modern  Wills  may  be  traced  is  not,  however,  the 
Testament  executed  in  the  Calata  Comitia,  but 


CHAP.  VI. 


PLEBEIAN  WILLS. 


195 


another  Testament  designed  to  compete  with  it  and 
destined  to  supersede  it.  The  historical  importance 
of  this  early  Roman  Will,  and  the  light  it  casts  on 
much  of  ancient  thought,  will  excuse  me  for  de- 
scribing it  at  some  length. 

When  the  Testamentary  power  first  discloses 
itself  to  us  in  legal  history,  there  are  signs  that,  like 
almost  all  the  great  Roman  institutions,  it  was  the 
Subject  of  contention  between  the  Patricians  and 
the  Plebeians,  The  effect  of  the  political  maxim, 
Plebs  Gentem  non  habet,  "  a  Plebeian  cannot  be  a 
member  of  a  house,"  was  entirely  to  exclude  the 
Plebeians  from  the  Comitia  Curiata,  Some  critics 
have  accordingly  supposed  that  a  Plebeian  could 
not  have  his  Will  read  or  recited  to  the  Patrician 
Assembly,  and  was  thus  deprived  of  Testamentary 
privileges  altogether.  Others  have  been  satisfied 
to  point  out  the  hardships  of  having  to  submit  a 
proposed  Will  to  the  unfriendly  jurisdiction  of  an 
assembly  in  which  the  Testator  was  not  represented. 
Whatever  be  the  true  view,  a  form  of  Testament 
came  into  use,  which  has  all  the  characteristics  of  a 
contrivance  intended  to  evade  some  distasteful  ob- 
ligation. The  Will  in  question  was  a  conveyance 
inter  vivos,  a  complete  and  irrevocable  alienation 
of  the  Testator's  family  and  substance  to  the  person 
whom  he  meant  to  be  his  heir.  The  strict  rules  of 
Roman  law  must  always  have  permitted  such  an 
alienation,  but  when  the  transaction  was  intended 
to  have  a  posthumous  effect,  there  may  have  been 


196 


THE  PLEBEIAN  WILL. 


CHAT.  VI. 


disputes  whether  it  was  valid  for  Testament ary 
purposes  without  the  formal  assent  of  the  Patrician 
Parliament.  If  a  difference  of  opinion  existed  on 
the  point  between  the  two  classes  of  the  Roman 
population,  it  was  extinguished,  with  many  other 
sources  of  heartburning,  by  the  great  Decemvira] 
compromise.  The  text  of  the  Twelve  Tables  is  still 
extant  which  says,  "JPater  famiUas  uti  de  pecunid 
iuteldve  rei  su<b  legassit,  ita  jus  esto  " — a  law  which 
can.  hardly  have  had  any  other  object  than  the  le- 
galisation of  the  Plebeian  Will. 

It  is  well  kn'own  to  scholars  that,  centuries  after 
the  Patrician  Assembly  had  ceased  to  be  the  legis- 
lature of  the  Roman  State,  it  still  continued  to  hold 
formal  sittings  for  the  convenience  of  private  busi- 
ness. Consequently,  at  a  period  long  subsequent 
to  the  publication  of  the  Decemviral  Law,  there  is 
reason  to  believe  that  the  Comitia  Calata  still  as- 
sembled for  the  validation  of  Testaments.  Its  prob- 
able functions  may  be  best  indicated  by  saying  that 
it  was  a  Court  of  Registration,  with  the  under- 
standing, however,  that  the  Wills  exhibited  were 
not  enrolled,  but  simply  recited  to  the  members, 
who  were  supposed  to  take  note  of  their  tenor  and 
to  commit  them  to  memory.  It  is  very  likely  that 
this  form  of  Testament  was  never  reduced  to  wri- 
ting at  all,  but  at  all  events  if  the  Will  had  been 
originally  written,  the  office  of  the  Comitia  was  cer- 
tainly confined  to  hearing  it  read  aloud,  the  docu- 
ment being  retained  afterwards  in  the  custody  of  the 


THE  ANCIENT  PLEBEIAN  WILL. 


197 


Testator,  or  deposited  under  the  safeguard  of  some 
religious  corporation.  This  publicity  may  have 
been  one  of  the  incidents  of  the  Testament  executed 
in  the  Comitia  Calata  which  brought  it  into  popu 
lar  disfavour.  In  the  early  years  of  the  Empire  the 
Comitia  still  held  its  meetings,  but  they  seem  to 
have  lapsed  into  the  merest  form,  and  few  Wills,  or 
none,  were  probably  presented  at  the  periodical 
sitting. 

It  is  the  ancient  Plebeian  Will — the  alternative 
of  the  Testament  just  described — which  in  its  re- 
mote effects  has  deeply  modified  the  civilisation  of 
the  modern  world.  It  acquired  at  Rome  all  the 
popularity  which  the  Testament  submitted  to  the 
Calata  Comitia  appears  to  have  lost.  The  key  to 
all  its  characteristics  lies  in  its  descent  from  the 
7nancipium,  or  ancient  Roman  conveyance,  a  pro- 
ceeding to  which  we  may  unhesitatingly  assign  the 
parentage  of  two  great  institutions  without  which 
modern  society  can  scarcely  be  supposed  capable  of 
holding  together,  the  Contract  and  the  Will  The 
mancij)/um,  or,  as  the  word  would  exhibit  itself  in 
later  Latinity,  the  Mancipation,  carries  us  back  by 
its  incidents  to  the  infancy  of  civil  society.  As  it 
sprang  from  times  long  anterior,  if  not  to  the  inven- 
tion, at  all  events  to  the  popularisation,  of  the  art 
of  writing,  gestures,  symbolical  acts,  and  solemn 
phrases  take  the  place  of  documentary  forms,  and 
a  lengthy  and  intricate  ceremonial  is  intended  to 
call  the  attention  of  the  parties  to  the  importance 


198 


TI1E  MANCIPATION. 


CHAP.  TI 


of  the  transaction,  and  to  impress  it  on  the  memory 
of  the  witnesses.  The  imperfection,  too,  of  oral,  as 
compared  with  written,  testimony  necessitates  the 
multiplication  of  the  witnesses  and  assistants  be- 
yond what  in  later  times  would  be  reasonable  or 
intelligible  limits. 

The  Roman  Mancipation  required  the  presence 
first  of  all  the  parties,  the  vendor  and  vendee, 
or  we  should  perhaps  rather  say,  if  we  are  to  use 
modern  legal  language,  the  grantor  and  grantee. 
There  were  also  no  less  than  five  witnesses ;  and 
an  anomalous  personage,  the  Libripens,  who  brought 
with  him  a  pair  of  scales  to  weigh  the  uncoined 
copper  money  of  ancient  Rome.  The  Testament 
we  are  considering — the  Testament  per  ces  et  Mbram, 
"  with  the  copper  and  the  scales,"  as  it  long  contiu 
ued  to  be  technically  called — was  an  ordinary  Man 
cipation  with  no  change  in  the  form  and  hardly 
any  in  words.  The  Testator  was  the  grantor  ;  the 
five  witnesses  and  the  libripens  were  present;  and 
the  place  of  grantee  was  taken  by  a  person  known 
technically  as  the  familice  emptor,  the  Purchaser 
of  the  Family.  The  ordinary  ceremony  of  a  Manci- 
pation was  then  proceeded  with.  Certain  formal 
gestures  were  made  and  sentences  pronounced. 
The  Emptor  familice  simulated  the  payment  of  a 
price  by  striking  the  scales  with  a  piece  of  money, 
and  finally  the  Testator  ratified  what  had  been  done 
in  a  set  fonn  of  words  called  the  "  Nuncupatio  "  or 
publication  of  the  transaction,  a  phrase  which,  I 


CHAP.  VI. 


MAXCIPATORY  WILLS. 


199 


need  scarcely  remind  the  lawyer,  has  had  a  long 
history  in  Testamentary  jurisprudence.  It  is  neces- 
sary to  attend  particularly  to  the  character  of  the 
person  called  families  emptor.  There  is  no  doubt 
that  at  first  he  was  the  Heir  himself.  The  Testator 
conveyed  to  him  outright  his  whole  "  farnilia,"  that 
is,  all  the  rights  he  enjoyed  over  and  through  the 
family ;  his  property,  his  slaves,  and  all  his  an- 
cestral privileges,  together,  on  the  other  hand,  with 
all  his  duties  and  obligations. 

\Yith  these  data  before  us,  we  are  able  to  note 
several  remarkable  points  in  which  the  Mancipatory 
Testament,  as  it  may  be  called,  differed  in  its  primi- 
tive form  from  a  modern  will.  As  it  amounted  to 
a  conveyance  out-and-out  of  the  Testator's  estate,  it 
was  not  revocable.  There  could  be  no  new  exercise 
of  a  power  which  had  been  exhausted. 

Again,  it  was  not  secret.  The  Familia?  Emptor, 
being  himself  the  Heir,  knew  exactly  what  his 
rights  were,  and  was  aware  that  he  was  irreversibly 
entitled  to  the  inheritance  ;  a  knowledge  which  the 
violences  inseparable  from  the  best-ordered  ancient 
society  rendered  extremely  dangerous.  But  per- 
haps the  most  surprising  consequence  of  this  rela- 
tion of  Testaments  to  Conveyances  was  the  imme- 
diate vesting  of  the  inheritance  in  the  Heir.  This 
has  seemed  so  incredible  to  no!  a  few  civilians,  that 
they  have  spoken  of  the  Testators  estate  as  vesting 
conditionally  on  the  Testator's  death,  or  as  granted 
to  him  from  a  time  uncertain,  i.  e.  the  death  of  the 


200 


ANCIENT  WILLS  NOT  WRITTEN. 


CHAP.  VI. 


grantor.  But  down  to  the  latest  period  of  Roman 
jurisprudence  there  were  a  certain  class  of  transaC' 
tions  which  never  admitted  of  being  directly  modi- 
fied by  a  condition,  or  of  being  limited  to  or  from  a 
point  of  tune.  In  technical  language  they  did  not 
admit  conditio  or  dies.  Mancipation  was  one  of 
them,  and  therefore,  strange  as  it  may  seem,  we  are 
forced  to  conclude  that  the  primitive  Roman  Will 
took  effect  at  once,  even  though  the  Testator  sur- 
vived his  act  of  Testation.  It  is  indeed  likely  that 
Roman  citizens  originally  made  their  Wills  only  in 
the  article  of  death,  and  that  a  provision  for  the 
continuance  of  the  Family  effected  by  a  man  in  the 
flower  of  life  would  take  the  form  rather  of  an 
Adoption  than  of  a  Will  Still  we  must  believe 
that,  if  the  Testator  did  recover,  he  could  only  con- 
tinue to  govern  his  household  by  the  sufferance  of 
his  Heir. 

Two  or  three  remarks  should  be  made  before  I 
explain  how  these  inconveniences  were  remedied, 
and  how  Testaments  came  to  be  invested  with  the 
characteristics  now  universally  associated  with  them. 
The  Testament  was  not  necessarily  written :  at 
first,  it  seems  to  have  been  invariably  oral,  and  even 
in  later  times,  the  instrument  declaratory  of  the  be- 
quests was  only  incidentally  connected  with  the  Will 
and  formed  no  essential  part  of  it.  It  bore  in  fact 
exactly  the  same  relation  to  the  Testament,  which 
the  deed  leading  the  uses  bore  to  the  Fines  and  Re- 
coveries  of  old  English  law,  or  which  the  charter  of 


uhap.  tl      TOE  PURCHASER  OF  THE  FAMILY. 


201 


feoffment  bore  to  the  feoffment  itself.  Previously, 
indeed,  to  the  Twelve  Tables,  no  writing  would 
have  been  of  the  slightest  use,  for  the  Testator  had 
no  power  of  giving  legacies,  and  the  only  persons 
who  could  be  advantaged  by  a  will  were  the  Heir 
or  Co-Heirs.  But  the  extreme  generality  of  the 
clause  in  the  Twelve  Tables  soon  produced  the  doc- 
trine that  the  Heir  must  take  the  inheritance  bur- 
dened by  any  directions  which  the  Testator  might 
give  him,  or  in  other  words,  take  it  subject  to  lega- 
cies. Written  testamentary  instruments  assumed 
thereupon  a  new  value,  as  a  security  against  the 
fraudulent  refusal  of  the  heir  to  satisfy  the  legatees; 
but  to  the  last  it  was  at  the  Testator's  pleasure  to 
rely  exclusively  on  the  testimony  of  the  witnesses, 
and  to  declare  by  word  of  mouth  the  legacies  which 
the  familicB  emptor  was  commissioned  to  pay. 

The  terms  of  the  expression  Emptor  familice  de- 
mand notice.  "  Emptor  "  indicates  that  the  Will 
was  literally  a  sale,  and  the  word  "familioe,  "  when 
compared  with  the  phraseology  in  the  Testamentary 
clause  in  the  Twelve  Tables,  leads  us  to  some  instruc- 
tive conclusions.  "Familia,  "in  classical  Latinity, 
means  always  a  man's  slaves.  Here,  however,  and 
generally  in  the  language  of  ancient  Roman  law,  it 
includes  all  persons  under  his  Potestas,  and  the  Tes- 
tator's material  property  or  substance  is  understood 
to  pass  as  an  adjunct  or  appendage  of  his  household. 
Turning  to  the  law  of  the  Twelve  Tables,  it  will  be 
seen  that  it  speaks  of  tutela  rei  suce  "the  guardian 


202 


THE  PR^ETORIAX  WILL. 


CHAP.  VI. 


ship  of  his  substance,"  a  form  of  expression  which 
is  the  exact  reverse  of  the  phrase  just  examined 
There  does  not  therefore  appear  to  be  an)-  mode  oi 
escaping  from  the  conclusion,  that  even  at  an  era  so 
comparatively  recent  as  that  of  the  Decemviral  com- 
promise, terms  denoting  "household"  and  "proper- 
ty "  were  blended  in  the  current  phraseology.  If  a 
man's  household  had  been  spoken  of  as  his  property 
we  might  have  explained  the  expression  as  pointing 
to  the  extent  of  the  Patria  Potestas,  but,  as  the  inter- 
change is  reciprocal,  we  must  allow  that  the  form  of 
speech  carries  us  back  to  that  primeval  period  in 
which  property  is  owned  by  the  family,  and  the  fam- 
ily is  governed  by  the  citizen,  so  that  the  members 
of  the  community  do  not  own  their  property  and 
their  family,  but  rather  own  their  property  through 
their  family. 

At  an  epoch  not  easy  to  settle  with  precision,  the 
Roman  Praetors  fell  into  the  habit  of  acting  upon 
Testaments  solemnized  in  closer  conformity  with  the 
spirit  than  the  letter  of  the  law.  Casual  dispensa- 
tions became  insensibly  the  established  practice  till 
at  length  a  wholly  new  form  of  Will  was  matured 
and  regularly  engrafted  on  the  Edictal  Jurispru- 
dence. The  new  or  jPrwtor/<n>  Testament  derived 
the  whole  of  its  impregnability  from  the  Jus  Hono- 
rarium or  Equity  of  Rome.  The  Praetor  of  some 
particular  year  must  have  inserted  a  clause  in  his 
Inaugural  Proclamation  declaratory  of  his  intention 
to  sustain  all  Testaments  which  should  have  been 


cnAP.  VL 


THE  PRAETORIAN  WILL. 


203 


executed  with  such  and  such  solemnities  ;  and,  the 
reform  having  been  found  advantageous,  the  article 
relating  to  it  must  have  been  again  introduced  by 
the  Praetor's  successor,  and  repeated  by  the  next  in 
office,  till  at  length  it  formed  a  recognised  portion 
of  that  body  of  jurisprudence  which  from  these  suc- 
cessive incorporations  was  styled  the  Perpetual  or 
Continuous  Edict.  On  examining  the  conditions  of 
a  valid  Praetorian  Will  they  will  be  plainly  seen  to 
have  been  determined  by  the  requirements  of  the 
Mancipatory  Testament,  the  innovating  Praetor  hav- 
ing obviously  prescribed  to  himself  the  retention  of 
the  old  formalities  just  so  far  as  they  were  warrants 
of  genuineness  or  securities  against  fraud.  At  the 
execution  of  the  Mancipatory  Testament  seven  per- 
sons had  been  present  besides  the  Testator.  Seven 
witnesses  were  accordingly  essential  to  the  Praetorian 
Will:  two  of  them  corresponding  to  the  lihripens 
and  families  emjitoi;  who  were  now  stripped  of  their 
symbolical  character,  and  were  merely  present  for 
the  purpose  of  supplying  their  testimony.  No  em- 
blematic ceremony  was  gone  through  ;  the  Will  was 
merely  recited  ;  but  then  it  is  probable  (though 
not  absolutely  certain)  that  a  written  instrument  was 
necessary  to  perpetuate  the  evidence  of  the  Testa- 
tor's dispositions.  At  all  events,  whenever  a  writ- 
ing was  read  or  exhibited  as  a  person's  last  Will,  we 
know  certainly  that  the  Praetorian  Court  would  not 
sustain  it  by  special  intervention,  unless  each  of 
the  seven  witnesses  had  severally  affixed  his  seal  to 


204 


THE  BONORUM  POSSESSIO.  chap,  vi 


tLe  outside.  This  is  the  first  appearance  of  seal- 
ing in  the  history  of  jurisprudence,  considered  as  a 
mode  of  authentication.  The  use  of  seals,  however, 
as  mere  fastenings,  is  doubtless  of  much  higher  an- 
tiquity ;  and  it  appears  to  have  been  known  to  the 
Hebrews.  We  may  observe,  that  the  seals  of  Roman 
Wills,  and  other  documents  of  importance,  did  not 
only  serve  as  the  index  of  the  presence  or  assent  of 
the  signatary,  but  were  also  literally  fastenings  which 
had  to  be  broken  before  the  writing  could  be  in- 
spected. 

The  Edictal  Law  would  therefore  enforce  the 
dispositions  of  a  Testator,  when,  instead  of  being 
symbolised  through  the  forms  of  mancipation,  they 
were  simply  evidenced  by  the  seals  of  seven  wit- 
nesses. But  it  may  be  laid  down  as  a  general 
proposition,  that  the  principal  qualities  of  Roman 
property  were  incommunicable  except  through  pro- 
cesses which  were  supposed  to  be  coeval  with  th 
origin  of  the  Civil  Law.  The  Prsetor  therefore 
could  not  confer  an  Inheritance  on  anybody.  He 
could  not  place  the  Heir  or  Co-heirs  in  that  very  re- 
lation in  which  the  Testator  had  himself  stood  to  his 
own  rights  and  obligations.  All  he  could  do  was 
to  confer  on  the  person  designated  as  Heir  the  prac- 
tical enjoyment  of  the  property  bequeathed,  and  to 
give  the  force  of  legal  acquittances  to  his  payments 
of  the  Testator's  debts.  When  he  exerted  his 
powers  to  these  ends,  the  Prsetor  was  technically 
said  to  communicate  the  Bonorum  Possessio.  The 


chap.  vi.      IMPROVEMENTS  IN  THE  OLD  WILL.  205 


Heir  specially  inducted  under  these  circumstances, 
or  Bonorum  Possessor,  had  every  proprietary  prrv  • 
ilege  of  the  Heir  by  the  Civil  Law.  He  took  the 
profits  and  he  could  alienate,  but  then,  for  all  his 
remedies  for  redress  against  wrong,  he  must  go,  as 
we  should  phrase  it,  not  to  the  Common  Law,  but 
to  the  Equity  side  of  the  Praetorian  Court.  No 
great  chance  of  error  would  be  incurred  by  describ- 
ing him  as  having  an  equitable  estate  in  the  inher- 
itance ;  but  then,  to  secure  ourselves  against  being 
deluded  by  the  analogy,  we  must  always  recollect 
that  in  one  year  the  Bonorum  Possessio  was  ope- 
rated upon  by  a  principle  of  Roman  Law  known  as 
Usucapion,  and  the  Possessor  became  Quiritarian 
owner  of  all  the  property  comprised  in  the  inher- 
itance. 

We  know  too  little  of  the  older  law  of  Civil 
Process  to  be  able  to  strike  the  balance  of  advan- 
tage and  disadvantage  between  the  different  classes 
of  remedies  supplied  by  the  Praetorian  Tribunal.  It 
is  certain,  however,  that,  in  spite  of  its  many  defects, 
the  Mancipatory  Testament  by  which  the  universi- 
tas  juris  devolved  at  once  and  unimpaired  was  never 
entirely  superseded  by  the  new  Will ;  and  at  a  pe- 
riod less  bigoted  to  antiquarian  forms,  and  perhaps 
not  quite  alive  to  their  significance,  all  the  ingenuit  y 
of  the  Jurisconsults  seems  to  have  been  expended 
on  the  improvement  of  the  more  venerable  instru- 
ment. At  the  era  of  Gains,  which  is  that  of  the 
Antonine  Caesars,  the  great  blemishes  of  the  Manci 


206 


IMPROVEMENTS  IN  THE  OLD  WILL.     chap,  n, 


patory  Will  had  been  removed.  Originally,  as  we 
have  seen,  the  essential  character  of  the  formalities 
had  required  that  the  Heir  himself  should  be  the 
Purchaser  of  the  Family,  and  the  consequence  was 
that"  he  not  only  instantly  acquired  a  vested  interest 
in  the  Testator's  Property,  but  was  formally  made 
aware  of  his  rights.  But  the  age  of  Gaius  permit- 
ted some  unconcerned  person  to  officiate  as  Purcha- 
ser of  the  Family.  The  Heir,  therefore,  was  not 
necessarily  informed  of  the  succession  to  which  he 
was  destined  ;  and  Wills  thenceforward  acquired  the 
property  of  secrecy.  The  substitution  of  a  stranger 
for,  the  actual  Heir  in  the  functions  of  "Familiaa 
Emptor  "  had  other  ulterior  consequences.  As  soon 
as  it  was  legalised,  a  Roman  Testament  came  to  con- 
sist of  two  parts  or  stages, — a  Conveyance,  which 
was  a  pure  form,  and  a  Nuncupatio,  or  Publication. 
In  this  latter  passage  of  the  proceeding,  the  Testa- 
tor  either  orally  declared  to  the  assistants  the  wishes 
which  were  to  be  executed  after  his  death,  or  pro- 
duced a  written  document  in  which  his  wishes  were 
embodied.  It  was  not  probably  till  attention  had 
been  quite  drawn  off  from  the  imaginary  Convey- 
ance, and  concentrated  on  the  Nuncupation  as  the 
essential  part  of  the  transaction,  that  Wills  were 
allowed  to  become  revocable. 

I  have  thus  carried  the  pedigree  of  Wills  some 
way  down  in  legal  history.  The  root  of  it  is  the 
old  Testament  "  with  the  copper  and  the  scales," 
founded  on  a  Mancipation  or  Conveyance.  Thia 


on  \  p.  ti. 


THE  ROMAN  WILL. 


207 


ancient  Will  has,  however,  manifold  defects,  which 
are  remedied,  though  only  indirectly,  by  the  Praeto 
rian  law.  Meantime  the  ingenuity  of  the  Jurisconsults 
effects,  in  the  Common-Law  Will  or  Mancipatory 
Testament,  the  very  improvements  which  the  Praetor 
may  have  concurrently  carried  out  in  Equity.  These 
last  ameliorations  depend,  however,  on  more  legal 
dexterity,  and  we  see  accordingly  that  the  Testa- 
mentary  Law  of  the  day  of  Gaius  or  Ulpian  is  only 
transitional.  What  changes  next  ensued  we  know 
not ;  but  at  length  just  before  the  reconstruction  ol 
the  jurisprudence  by  Justinian,  we  find  the  subjects 
of  the  Eastern  Roman  Empire  employing  a  form  cf 
Will  of  which  the  pedigree  is  traceable  to  the  Prae- 
torian Testament  on  one  side,  and  to  the  Testament 
"  with  the  copper  and  the  scales,"  on  the  other. 
Like  the  Testament  of  the  Praetor,  it  required  no 
Mancipation,  and  was  invalid  unless  sealed  by  seven 
witnesses.  Like  the  Mancipatory  Will,  it  passed 
the  Inheritance  and  not  merely  a  Bonorum  Posses- 
8io.  Several,  however,  of  its  most  important  fea- 
tures were  annexed  by  positive  enactments,  and  it  is 
out  of  regard  to  this  threefold  derivation  from  the 
Praetorian  Edict,  from  the  Civil  Law,  and  from  the 
Imperial  Constitutions,  that  Justinian  speaks  of  the 
Law  of  Wills  in  his  own  days  as  Jus  Tbipertitum. 
The  New  Testament  thus  described  is  the  our  gen- 
erally known  as  the  Roman  Will,  lint  it  was  the 
Will  of  the  Eastern  Empire  only  ;  and  the  researches 


208 


THE  ROMAX  WILL. 


CHAP.  Yl 


of  Savigny  have  shown  that  in  Western  Europe  the 
old  Mancipatory  Testament,  with  all  its  apparatus 
of  conveyance,  copper,  and  scales,  continued  to  be 
the  form  in  use  far  down  in  the  Middle  Ages. 


CHAPTER  VII. 


ANCIENT  ANL  MODERN  IDEAS  RESPECTING  WILIS  AND 
SUCCESSIONS. 

Although  there  is  much  in  the  modern  European 
Law  of  Wills  which  is  intimately  connected  with  the 
oldest  rules  of  Testamentary  disposition  practised 
among  men,  there  are  nevertheless  some  important 
differences  between  ancient  and  modern  ideas  on 
the  subject  of  Wills  and  Successions.  Some  of  the 
points  of  difference  I  shall  endeavor  to  illustrate  in 
this  chapter. 

At  a  period,  removed  several  centuries  from  the 
era  of  the  Twelve  Tables,  we  find  a  variety  of  rules 
engrafted  on  the  Roman  Civil  Law  with  the  view  of 
limiting  the  disinherison  of  children  ;  we  have  the 
jurisdiction  of  the  Praetor  very  actively  exerted  in 
the  same  interest;  and  we  are  also  presented  with 
a  new  remedy,  very  anomalous  in  character  and  of 
uncertain  origin,  called  the  Querela  Inofficiosi  Tes- 
tament!, "  the  Plaint  of  an  Undnteous  Will,"  directed 
to  the  reinstatement  of  the  issue  in  inheritances  from 
n 


210  DISINHERISON  OF  CHILDREN".         ohap.  vn 

which  they  had  been  unjustifiably  excluded  by  a 
father's  Testament.  Comparing  this  condition  of 
the  law  with  the  text  of  the  Twelve  Tables  which 
concedes  in  terms  the  utmost  liberty  of  Testation, 
several  writers  have  been  tempted  to  interweave  a 
good  deal  of  dramatic  incident  into  their  history  of 
the  Law  Testamentary.  They  tell  us  of  the  bound- 
less license  of  disinherison  in  which  the  heads  of 
families  instantly  began  to  indulge,  of  the  scandal 
and  injury  to  public  morals  which  the  new  practices 
engendered,  and  of  the  applause  of  all  good  men 
which  hailed  the  courage  of  the  Praetor  in  arresting 
the  progress  of  paternal  depravity.  This  story, 
Which  is  not  without  some  foundation  for  the  prin- 
cipal fact  it  relates,  is  often  so  told  as  to  disclose 
very  serious  misconceptions  of  the  principles  of  legal 
historv.  The  Law  of  the  Twelve  Tables  is  to  be 
explained  by  the  character  of  the  age  in  which  it 
was  enacted.  It  does  not  license  a  tendency  which 
a  later  era  thought  itself  bound  to  counteract,  but 
it  proceeds  on  the  assumption  that  no  such  tendency 
exists,  or,  perhaps  we  should  say,  in  ignorance  of 
the  possibility  of  its  existence.  There  is  no  likeli- 
hood that  Roman  citizens  began  immediately  to 
avail  themselves  freely  of  the  power  to  disinherit. 
It  is  against  all  reason  and  sound  appreciation  of 
history  to  suppose  that  the  yoke  of  family  bondage, 
Still  patiently  submitted  to,  as  we  know,  where  its 
pressure  galled  most  cruelly,  would  be  cast  off  in  the 
very  particular  in  which  its  incidence  in  our  on  n 


chap.  tii.         DISIXnERISOX  OF  CniLDREX. 


211 


day  is  not  otherwise  than  welcome.  The  Law  of 
the  Twelve  Tables  permitted  the  execution  of  Testa 
ments  in  the  only  case  in  which  it  was  thought  pos- 
sible that  they  could  be  executed,  viz. :  on  failure  of 
children  and  proximate  kindred.  It  did  not  forbid 
the  disinherison  of  direct  descendants,  inasmuch  as 
it  did  not  legislate  against  a  contingency  which  no 
Roman  lawgiver  of  that  era  could  have  contempla- 
ted. No  doubt,  as  the  offices  of  family  affection 
progressively  lost  the  aspect  of  primary  persona] 
duties,  the  disinherison  of  children  was  occasionally 
attempted.  But  the  interference  of  the  Prretor,  so 
far  from  being  called  for  by  the  universality  of  the 
abuse,  was  doubtless  first  prompted  by  the  fact  that 
such  instances  of  unnatural  caprice  were  few  and 
exceptional,  and  at  conflict  with  the  current  mo- 
rality. 

The  indications  furnished  by  this  part  of  Roman 
Testamentary  Law  are  of  a  very  different  kind.  It 
is  remarkable  that  a  Will  never  seems  to  have  been 
regarded  by  the  Romans  as  a  means  of  disinherit  i  mj 
a  Family,  or  of  effecting  the  unequal  distribution  of 
a  patrimony.  The  rules  of  law  preventing  its  being 
turned  to  such  a  purpose,  increase  in  number  and 
stringency  as  the  jurisprudence  unfolds  itself;  and 
these  rules  correspond  doubtless  with  the  abiding 
sentiment  of  Roman  society,  as  distinguished  from 
occasional  variations  of  feeling  in  individuals.  It 
would  rather  seem  as  if  the  Testamentary  Powei 
were  chiefly  valued  for  the  assistance  it  gave  ir 


212 


FEELING  RESPECTING  INTESTACY.      chap.  vii. 


making  provision  for  a  Family,  and  in  dividing  the 
inheritance  more  evenly  and  fairly  than  the  Law  of 
Intestate  Succession  would  have  divided  it.  If  this 
be  the  true  reading  of  the  general  sentiment  on  the 
point,  it  explains  to  some  extent  the  singular  hoiTC 
of  Intestacy  which  always  characterised  the  Roman. 
No  evil  seems  to  have  been  considered  a  heavier 
visitation  than  the  forfeiture  of  Testamentary  pri- 
vileges ;  no  curse  appears  to  have  been  bitterer  than 
that  which  imprecated  on  an  enemy  that  he  might 
die  without  a  Will.  The  feeling  has  no  counterpart, 
or  none  that  is  easily  recognisable,  in  the  forms  of 
opinion  which  exist  at  the  present  day.  All  men  at 
all  times  will  doubtless  prefer  chalking  out  the  desti- 
nation of  their  substance  to  having  that  office  per- 
formed for  them  by  the  law  ;  but  the  Roman  passion 
for  Testacy  is  distinguished  from  the  mere  desire  to 
indulge  caprice  by  its  intensity ;  and  it  has,  of  course, 
nothing  whatever  in  common  with  that  pride  of 
family,  exclusively  the  creation  of  feudalism,  which 
accumulates  one  description  of  property  in  the  hands 
of  a  single  representative.  It  is  probable,  a  priori, 
that  it  was  something  in  the  rules  of  Intestate  Suc- 
cession which  caused  this  vehement  preference  for 
the  distribution  of  property  under  a  Testament  over 
its  distribution  by  law.  The  difficulty,  however,  is, 
that  on  glancing  at  the  Roman  law  of  Intestate 
Succession,  in  the  form  which  it  wore  for  many 
centuries  before  Justinian  shaped  it  into  that  scheme 
of  inheritance  which  has  been  almost  universally 


oeap.  til      ROMAN  INTESTATE  SUCCESSION. 


213 


adopted  by  modern  lawgivers,  it  by  no  means  strikes 
one  as  remarkably  unreasonable  or  inequitable.  On 
the  contrary,  the  distribution  it  prescribes  is  so  fair 
and  rational,  and  differs  so  little  from  that  with 
which  modern  society  has  been  generally  contented, 
that  no  reason  suggests  itself  why  it  should  have 
been  regarded  with  extraordinary  distaste,  especially 
under  a  jurisprudence  which  pared  down  to  a  nar- 
row compass  the  testamentary  privileges  of  persons 
who  had  children  to  provide  for.  We  should  rather 
have  expected  that,  as  in  France  at  this  moment, 
the  heads  of  families  would  generally  save  themselves 
the  trouble  of  executing  a  Will,  and  allow  the  Law 
to  do  as  it  pleased  with  their  assets.  I  think,  how- 
ever, if  we  look  a  little  closely  at  the  pre-Justinian- 
ean  scale  of  Intestate  Succession,  we  shall  discover 
the  key  to  the  mystery.  The  texture  of  the  law 
consists  of  two  distinct  parts.  One  department  of 
rules  comes  from  the  Jus  Civile,  the  Common  Law 
of  Rome ;  the  other  from  the  Edict  of  the  Prsetor. 
The  Civil  Law,  as  I  have  already  stated  for  another 
purpose,  calls  to  the  inheritance  only  three  orders 
of  successors  in  their  turn  ;  the  unemancipated  chil- 
dren, the  nearest  class  of  Agnatic  kindred,  and  the 
Gentiles.  Between  these  three  orders,  the  Prwtor 
interpolates  various  classes  of  relatives,  of  whom 
the  Civil  Law  took  no  notice  whatever.  Ultimately, 
the  combination  of  the  Edict  and  of  the  Civil  Law 
forms  a  table  of  succession  not  materially  different 


114  ANCIENT  INTESTATE  SUCCESSION.      chap.  tii. 


from  that  which  has  descended  to  the  generality  of 
modern  codes. 

The  point  for  recollection  is,  that  there  must 
anciently  have  been  a  time  at  which  the  rules  of  the 
Civil  Law  determined  the  scheme  of  Intestate  Suc- 
cession exclusively,  and  at  which  the  arrangements 
of  the  Edict  were  non-existent,  or  not  consistently 
carried  out.  We  cannot  doubt  that,  in  its  infancy, 
the  Praetorian  jurisprudence  had  to  contend  with 
formidable  obstructions,  and  it  is  more  than  proba- 
ble that,  long  after  popular  sentiment  and  legal 
opinion  had  acquiesced  in  it,  the  modifications  which 
it  periodically  introduced  were  governed  by  no  cer- 
tain principles,  and  fluctuated  with  the  varying  bias 
of  successive  magistrates.  The  rules  of  Intestate 
Succession,  which  the  Romans  must  at  this  period 
have  practised,  account,  I  think — and  more  than  ac- 
count— for  that  vehement  distaste  for  an  Intestacy 
to  which  Roman  society  during  so  many  ages  re- 
mained constant.  The  order  of  succession  was  this  : 
on  the  death  of  a  citizen,  having  no  will  or  no  valid 
will,  his  Unemancipated  children  became  his  Heirs. 
His  emancipated  sous  had  no  share  in  the  inheritance. 
If  he  left  no  direct  descendants  living  at  his  death, 
the  nearest  grade  of  the  Agnatic  kindred  succeeded, 
but  no  part  of  the  inheritance  was  given  to  any 
relative  united  (however  closely)  with  the  dead  man 
through  female  descents.  All  the  other  branches 
of  the  family  were  excluded,  and  the  inheritance 
escheated  to  the  Gentilts,  or  entire  body  of  Roman 


ohap.  vn.      ANCIENT  INTESTATE  SUCCESSION. 


215 


citizens  bearing  the  same  name  with  the  deceased. 
So  that  on  failing  to  execute  an  operative  Testament, 
a  Roman  of  the  era  under  examination  left  his 
emancipated  children  absolutely  without  provision, 
while,  on  the  assumption  that  he  died  childless,  there 
was  imminent  risk  that  his  possessions  would  escape 
from  the  family  altogether,  and  devolve  on  a  num- 
ber of  persons  with  whom  he  was  merely  connected 
by  the  sacerdotal  fiction  that  assumed  all  members 
of  the  same  gens  to  be  descended  from  a  common 
ancestor.  The  prospect  of  such  an  issue  is  in  itself 
a  nearly  sufficient  explanation  of  the  popular  senti- 
ment ;  but,  in  point  of  fact,  we  shall  only  half  un- 
derstand it,  if  we  forget  that  the  state  of  things  I 
have  been  describing  is  likely  to  have  existed  at  the 
very  moment  when  Roman  society  was  in  the  first 
stage  of  its  transition  from  its  primitive  organisation 
in  detached  families.  The  empire  of  the  father  had 
indeed  received  one  of  the  earliest  blows  directed  at 
it  through  the  recognition  of  Emancipation  as  a  le- 
gitimate usage,  but  the  law,  still  considering  the 
Patria  Potestaa  to  be  the  root  of  family  connection, 
persevered  in  looking  on  the  emancipated  children 
as  strangers  to  the  rights  of  Kinship  and  aliens  from 
the  blood.  We  cannot,  however,  for  a  moment  sup- 
pose that  the  limitations  of  the  family  imposed  by 
legal  pedantry  had  their  counterpart  in  the  natural 
affection  of  parents.  Family  attachments  must  still 
have  retained  that  nearly  inconceivable  sanctity  and 
intensity  which  belonged  to  them  under  the  Patri- 


i 


216  FEELING  EESPECTING  INTESTACY.      cnir.  vn. 


archal  system ;  and  so  little  are  they  likely  to  have 
been  extinguished  by  the  act  of  emancipation,  that 
the  probabilities  are  altogether  the  other  way.  It 
may  be  unhesitatingly  taken  for  granted  that  enfran 
chiseuient  from  the  father's  power  was  a  demonstra 
tion,  rather  than  a  severance,  of  affection — a  mark 
of  Grace  and  favour  accorded  to  the  best-beloved 

O 

and  most  esteemed  of  the  children.  If  sons  thus 
honoured  above  the  rest  were  absolutely  deprived 
of  their  heritage  by  an  Intestacy,  the  reluctance  to 
incur  it  requires  no  farther  explanation.  We  might 
have  assumed  d  priori  that  the  passion  for  Testacy, 
was  generated  by  some  moral  injustice  entailed  by 
the  rules  of  Intestate  succession  ;  and  here  we  find 
them  at  variance  with  the  very  instinct  by  which 
early  society  was  cemented  together.  It  is  possible 
to  put  all  that  has  been  urged  in  a  very  succinct  form. 
Every  dominant  sentiment  of  the  primitive  Romans 
was  entwined  with  the  relations  of  the  family.  But 
what  was  the  Family  ?  The  Law  defined  it  one  way 
— natural  affection  another.  In  the  conflict  between 
the  two,  the  feeling  we  would  analyse  grew  up, 
taking  the  form  of  an  enthusiasm  for  the  institution 
by  which  the  dictates  of  affection  were  permitted  to 
determine  the  fortunes  of  its  objects. 

I  regard,  therefore,  the  Roman  horror  of  Intes- 
tacy as  a  monument  of  a  very  early  conflict  between 
ancient  law  and  slowly  changing  ancient  sentiment 
on  the  subject  of  the  Family.  Some  passages  in  the 
Roman  Statute-Law,  and  one  statute  in  particular 


CHAP.  VII. 


MODERN  WILLS. 


21"? 


which  limited  the  capacity  for  inheritance  possessed 
by  women,  must  have  contributed  to  keep  alive  the 
feeling;  and  it  is  the  general  belief  that  the  system 
of  creating  Fidei-Comrnissa,  or  bequests  in  trust,  was 
devised  to  evade  the  disabilities  imposed  by  those 
statutes.  But  the  feeling  itself,  in  its  remarkable 
intensity,  seems  to  point  back  to  some  deeper  an- 
tagonism between  law  and  opinion ;  nor  is  it  at  all 
wonderful  that  the  improvements  of  jurisprudence 
by  the  Praetor  should  not  have  extinguished  it. 
Everybody  conversant  with  the  philosophy  of  opin- 
ion is  aware  that  a  sentiment  by  no  means  dies  out, 
of  necessity,  with  the  passing  away  of  the  circum- 
stances which  produced  it.  It  may  long  survive 
them  ;  nay,  it  may  afterwards  attain  to  a  pitch  and 
climax  of  intensity  which  it  never  attained  during 
their  actual  continuance. 

The  view  of  a  Will  which  regards  it  as  confer- 
ring  the  power  of  diverting  property  from  the  Fam- 
ily, or  of  distributing  it  in  such  uneven  proportions 
as  the  fancy  or  good  sense  of  the  Testator  may  dic- 
tate, is  not  older  than  that  later  portion  of  the  Mid- 
dle Ages  in  which  Feudalism  had  completely  con- 
solidated itself.  When  modern  jurisprudence  first 
shows  itself  in  the  rough,  Wills  are  rarely  allowed 
to  dispose  with  absolute  freedom  of  a  dead  man's 
assets.  Wherever  at  this  period  the  descent  of 
property  was  regulated  by  Will — and  over  the 
greater  part  of  Europe  moveable  or  personal  pro- 
perty was  the  subject  of  Testamentary  disposition 


218 


WIDOW'S  SHARE  OF  MOVEABLES.       chap,  vii, 


— the  exercise  of  the  Testamentary  power  was  sel- 
dom allowed  to  interfere  with  the  right  of  the  widow 
to  a  definite  share,  and  of  the  children  to  certain 
fixed  proportions,  .of  the  devolving  inheritance. 
The  shares  of  the  children,  as  their  amount  shows, 
were  determined  by  the  authority  of  Roman  law. 
The  provision  for  the  widow  was  attributable  to  the 
exertions  of  the  Church,  which  never  relaxed  its 
solicitude  for  the  interest  of  wives  surviving  their 
husbands — winning,  perhaps  one  of  the  most  ardu- 
ous of  its  triumphs  when,  after  exacting  for  two  or 
three  centuries  an  express  promise  from  the  hus- 
band at  marriage  to  endow  his  wife,  it  at  length  suc- 
ceeded in  engrafting  the  principle  of  Dower  on  the 
Customary  Law  of  all  Western  Europe.  Curiously 
enough,  the  dower  of  lands  proved  a  more  stable 
institution  than  the  analogous  and  more  aucient  re- 
servation of  certain  shares  of  the  personal  pro] terty 
to  the  widow  and  children.  A  few  local  customs  in 
France  maintained  the  right  down  to  the  Revolu- 
tion,  and  there  are  traces  of  similar  usages  in  Eng- 
land;  but  on  the  whole  the  doctrine  prevailed  that 
moveables  might  be  freely  disposed  of  by  Will, 
and,  even  when  the  claims  of  the  widow  continued 
to  be  respected,  the  privileges  of  the  children  werf 
obliterated  from  jurisprudence.  We  need  not  hesi 
tate  to  attribute  the  change  to  the  influence  of  Pri 
mogeniture.  As  the  Feudal  law  of  land  practicallj 
ilisinhcrited  all  the  children  in  favour  of  one,  tlu 
equal  distribution  even  of  those  sorts  of  property 


oriAP  ni. 


FRENCH  LAW  OF  WILLS. 


219 


which  might  have  been  equally  divided  ceased  to 
be  viewed  as  a  duty.  Testaments  were  the  princi- 
pal instruments  employed  in  producing  inequality, 
and  in  this  condition  of  things  originated  the  shade 
of  difference  which  shows  itself  between  the  ancient 
and  modern  conception  of  a  Will.  But,  though  the 
liberty  of  bequest,  enjoyed  through  Testaments,  wa8 
thus  an  accidental  fruit  of  Feudalism,  there  is  no 
broader  distinction  than  that  which  exists  between 
a  system  of  free  Testamentary  disposition  and  a  sys- 
tem, like  that  of  the  Feudal  land-law,  under  which 
property  descends  compulsorily  in  prescribed  lines 
of  devolution.  This  truth  appears  to  have  been  lost 
sight  of  by  the  authors  of  the  French  Codes.  In 
the  social  fabric  which  they  determined  to  destroy, 
they  saw  Primogeniture  resting  chiefly  on  Family 
settlements,  but  they  also  perceived  that  Testaments 
were  frequently  employed  to  give  the  eldest  son 
precisely  the  same  preference  which  was  reserved  to 
htm  under  the  strictest  of  entails.  In  order,  there- 
fore, to  make  sure  of  their  work,  they  not  only  ren- 
dered it  impossible  to  prefer  the  eldest  son  to  the 
rest  in  marriage-arrangements,  but  they  almost  ex- 
pelled Testamentary  succession  from  the  law,  lest  it 
should  be  used  to  defeat  their  fundamental  principle 
of  an  equal  distribution  of  property  among  children 
at  the  parent's  death.  The  result  is  that  they  have 
established  a  system  of  small  perpetual  entails,  which 
is  infinitely  nearer  akin  to  the  system  of  feudal 
Europe  than  would  be  a  perfect  liberty  of  bequest. 


220 


PRIMOGENITURE. 


CHAP,  vn 


The  land-law  of  England,  "  the  Hercnlaneum  of 
Feudalism,'1  is  certainly  much  more  closely  allied  to 
the  land-law  of  the  Middle  Ages  than  that  of  any 
Continental  country,  and  AYills  with  us  are  frequently 
used  to  aid  or  imitate  that  preference  of  the  eldest 
son  and  his  line  which  is  a  nearly  universal  feature 
in  marriage  settlements  of  real  property.  But  nev- 
ertheless feeling  and  opinion  in  this  country  have 
been  profoundly  affected  by  the  practice  of  free 
Testamentary  disposition  ;  and  it  appears  to  me  that 
the  state  of  sentiment  in  a  great  part  of  French  so- 
ciety, on  the  subject  of  the  conservation  of  proper- 
ty in  families,  is  much  liker  that  which  prevailed 
through  Europe  two  or  three  centuries  ago  than  are 
the  current  opinions  of  Englishmen. 

The  mention  of  Primogeniture  introduces  one  of 
the  most  difficult  problems  of  historical  jurispru- 
dence. Though  I  have  not  paused  to  explain  my 
expressions,  it  may  have  been  noticed  that  I  have 
frequently  spoken  of  a  number  of  "  co-heirs "  as 
placed  by  the  Roman  Law  of  Succession  on  the 
same  footing  with  a  single  Heir.  In  point  of  fact, 
we  know  of  no  period  of  Roman  jurisprudence  at 
which  the  place  of  the  Heir,  or  Universal  Successor, 
might  not  have  been  taken  by  a  group  of  co-heirs. 
This  group  succeeded  as  a  single  unit,  and  the  assets 
were  afterwards  divided  among  them  in  a  separate 
legal  proceeding.  When  the  Succession  was  ah  in- 
testate), and  the  group  consisted  of  the  children  of 
the  deceased,  they  each  took  an  equal  share  of  the( 


CHAP.  VII. 


PRIMOGENITURE. 


2-21 


property ;  nor,  though  males  had  at  one  time  some- 
advantages  over  females,  is  there  the  faintest  trace 
of  Primogeniture.  The  mode  of  distribution  is  the 
same  throughout  archaic  jurisprudence.  It  certainly 
seems  that,  when  civil  society  begins  and  families 
cease  to  hold  together  through  a  series  of  genera- 
tions, the  idea  which  spontaneously  suggests  itself  is 
to  divide  the  domain  equally  among  the  members  - 
of  each  successive  generation,  and  to  reserve  no  pri- 
vilege to  the  eldest  son  or  stock.  Some  peculiarly 
significant  hints  as  to  the  close  relation  of  this  phe- 
nomenon to  primitive  thought  are  furnished  by 
systems  yet  more  archaic  than  the  Roman.  Among 
the  Hindoos,  the  instant  a  son  is  born,  he  acquires 
a  vested  right  in  his  father's  property,  which  cannot 
be  sold  without  recognition  of  his  joint-ownership. 
On  the  son's  attaining  full  age,  he  can  sometimes 
compel  a  partition  of  the  estate  even  against  the 
consent  of  the  parent ;  and  should  the  parent  ac- 
quiesce, one  son  can  always  have  a  partition  even 
against  the  will  of  the  others.  On  such  partition 
taking  place,  the  father  has  no  advantage  over  his 
children,  except  that  he  has  two  of  the  shares  instead 
of  one.  The  ancient  law  of  the  German  tribes  was 
exceedingly  similar.  The  allod  or  domain  of  the 
family  was  the  joint-property  of  the  father  and  his 
eons.  It  does  not,  however,  appear  to  have  been 
habitually  divided  even  at  the  death  of  the  parent, 
and  in  the  same  w*ay  the  possessions  of  a  Hindoo, 
however  divisible  theoretically,  are  so  rarely  dis 


222 


PRIMOGENITURE. 


chap.  vn. 


tributed  in  fact,  that  many  generations  constantly 
succeed  each  other  without  a  partition  taking  place, 
and  thus  the  Family  in  India  has  a  perpetual  ten- 
dency to  expand  into  the  Village  Community,  under 
conditions  which  I  shall  hereafter  attempt  to  eluci- 
date. All  this  points  very  clearly  to  the  absolutely 
equal  division  of  assets  among  the  male  children  at 
death  as  the  practice  most  usual  with  society  at  the 
period  when  family-dependency  is  in  the  first  stages 
of  disintegration.  Here  then  emerges  the  historical 
difficulty  of  Primogeniture.  The  more  clearly  we 
perceive  that,  when  the  Feudal  institutions  were  in 
process  of  formation,  there  was  no  source  in  the 
world  whence  they  could  derive  their  elements  but 
the  Roman  law  of  the  provincials  on  the  one  hand 
and  the  archaic  customs  of  the  barbarians  on  the 
other,  the  more  are  we  perplexed  at  first  sight  by 
our  knowledge  that  neither  Roman  nor  barbarian 
was  accustomed  to  give  any  preference  to  the  eldest 
son  or  his  line  in  the  succession  to  property. 

Primogeniture  did  not  belong  to  the  Customs 
which  the  barbarians  practised  on  their  first  estab- 
lishment within  the  Roman  Empire.  It  is  known  to 
have  had  its  origin  in  the  benefices  or  beneficiary 
o-ifts  of  the  invading  chieftains.  These  benefices, 
which  were  occasionally  conferred  by  the  earlier  im- 
migrant kings,  but  were  distributed  on  a  great  scale 
by  Charlemagne,  were  grants  of  Roman  provincial 
land  to  be  holden  by  the  beneficiary  on  condition 
of  military  service.  The  allodial  proprietors  do  not 


CHAP.  vn. 


BENEFICES  AND  FIEFS. 


223 


seem  to  have  followed  their  sovereign  on  distant  or 
difficult  enterprises,  and  all  the  grander  expeditions 
of  the  Frankish  chiefs  and  of  Charlemagne  were  ac- 
complished with  forces  composed  of  soldiers  either 
personally  dependent  on  the  royal  house  or  com 
pelled  to  serve  it  by  the  tenure  of  their  land.  The 
benefices,  however,  were  not  at  first  in  any  sense 
hereditary.  They  were  held  at  the  pleasure  of  the 
grantor,  or  at  most  for  the  life  of  the  grantee ;  but 
still,  from  the  very  outset,  no  effort  seems  to  have 
been  spared  by  the  beneficiaries  to  enlarge  their 
tenure,  and  to  continue  their  lands  in  their  family  af- 
ter death.  Through  the  feebleness  of  Charlemagne's 
successor  these  attempts  were  universally  success- 
ful, and  the  Benefice  gradually  transformed  itself 
into  the  hereditary  Fief.  But,  though  the  fiefs  were 
hereditary,  they  did  not  necessarily  descend  to  the 
eldest  son.  The  rules  of  succession  which  they  fol- 
lowed were  entirely  determined  by  the  terms  agreed 
upon  between  the  grantor  and  the  beneficiary,  or 
imposed  by  one  of  them  on  the  weakness  of  the 
other.  The  original  tenures  were  therefore  extreme- 
ly various ;  not  indeed  so  capriciously  various  as  is 
sometimes  asserted,  for  all  which  have  hitherto  been 
described  present  some  combination  of  the  modes  of 
succession  familiar  to  Romania  and  to  barbarians,  but 
Bt ill  exceedingly  miscellaneous.  In  some  of  them, 
Lhe  eldest  son  and  his  stock  undoubtedly  succeeded 
to  the  fief  before  the  others,  but  such  successions, 
so  far  from  being  universal,  do  not  even  appear  to 


22i 


ALLODS  AXD  FIEFS. 


citap.  vii. 


have  been  general.  Precisely  the  same  phenomena 
recur  during  that  more  recent  transmutation  of  Eu- 
•  ropean  society  which  entirely  substituted  the  feudal 
form  of  property  for  the  domainial  (or  Roman)  and 
the  allodial  (or  German.)  The  allods  were  wholly 
absorbed  by  the  fiefs.  The  greater  allodial  proprie- 
tors transformed  themselves  into  feudal  lords  by 
conditional  alienations  of  portions  of  their  land  to 
dependants  ;  the  smaller  sought  an  escape  from  the 
oppressions  of  that  terrible  time  by  surrendering 
their  property  to  some  powerful  chieftain,  and  re- 
ceiving it  back  at  his  hands  on  condition  of  service  in 
his  wars.  Meantime,  that  vast  mass  of  the  popula- 
tion of  Western  Europe  whose  condition  was  servile 
or  semi-servile — the  Roman  and  German  personal 
slaves,  the  Roman  coloni  and  the  German  lidi — were 
concurrently  absorbed  by  the  feudal  organisation,  a 
few  of  them  assuming  a  menial  relation  to  the  lords, 
but  the  greater  part  receiving  land  on  terms  which  in 
those  centuries  were  considered  degrading.  The  ten- 
ures created  during  this  era  of  universal  infeudation 
were  as  various  as  the  conditions  which  the  tenants 
made  with  their  new  chiefs  or  were  forced  to  accept 
from  them.  As  in  the  case  of  benefices,  the  succes- 
sion to  some,  but  by  no  means  to  all,  of  the  estates 
followed  the  rule  of  Primogeniture.  No  sooner, 
however,  has  the  feudal  system  prevailed  through- 
out the  West,  than  it  becomes  evident  that  Primoge- 
niture has  some  great  advantage  over  every  other 
mode  of  succession.  It  spread  over  Europe  with  re- 


DIFFUSION  OF  PRIMOGENITURE. 


225 


markable  rapidity,  tbe  principal  instrument  of  dif- 
fusion being  Family  Settlements,  the  Pactes  de  Fam 
ille  of  France  and  Haus-Gesetze  of  Germany,  which 
universally  stipulated  that  lands  held  by  knightly 
service  should  descend  to  the  eldest  son.  Ultimately 
the  law  resigned  itself  to  follow  inveterate  practice, 
and  we  find  that  in  all  the  bodies  of  Customary  Law, 
which  were  gradually  built  up,  the  eldest  son  and 
stock  are  preferred  in  the  succession  to  estates  of 
which  the  tenure  is  free  and  military.  As  to  lands 
held  by  servile  tenures  (and  originally  all  tenures 
were  servile  which  bound  the  tenant  to  pay  money 
or  bestow  manual  labor),  the  system  of  succession 
prescribed  by  custom  differed  greatly  in  different 
countries  and  different  provinces.  The  more  gen- 
eral rule  was  that  such  lands  were  divided  equally 
at  death  among  all  the  children,  but  still  in  some 
instances  the  eldest  son  was  preferred,  in  some  the 
youngest.  But  Primogeniture  usually  governed  the 
inheritance  of  that  class  of  estates,  in  some  respects 
the  most  important  of  all,  which  were  held  by  ten- 
ures that,  like  the  English  Socage,  were  of  later  ori- 
gin than  the  rest,  and  were  neither  altogether  free 
nor  altogether  servile. 

The  diffusion  of  Primogeniture  is  usually  account- 
ed for  by  assigning  what  are  called  Feudal  rea- 
son- for  it.  It  is  asserted  that  the  feudal  superior 
had  a  better  security  for  the  military  service  he  re- 
quired when  the  fief  descended  to  a  single  person, 
instead  of  being  distributed  anions  a  number  on  the 
15 


226 


DIFFUSION  OF  PRIMOGENITURE.      chap,  tu 


decease  of  the  last  bolder.  Without  denying  that 
this  consideration  may  partially  explain  the  favour 
gradually  acquire.!  by  Primogeniture,  I  must  point 
out  that  Primogeniture  became  a  custom  of  Europe 
much  more  through  its  popularity  with  the  tenants 
than  through  any  advantage  it  conferred  on  the 
lords.  For  its  origin,  moreover,  the  reason  given 
does  not  account  at  all.  Nothing  in  law  springs  en- 
tirely from  a  sense  of  convenience.  There  are  always 
certain  ideas  existing  antecedently  on  which  the 
sense  of  convenience  works,  and  of  which  it  can  do 
no  more  than  form  some  new  combination ;  and  to 
find  these  ideas  in  the  present  case  is  exactly  the 
problem. 

A  valuable  hint  is  furnished  to  us  from  a  quarter 
fruitful  of  such  indications.  Although  in  India  the 
possessions  of  a  parent  are  divisible  at  his  death,  and 
may  be  divisible  during  his  life,  among  all  his  male 
children  in  equal  shares,  and  though  this  principle 
of  the  equal  distribution  of  property  extends  to  every 
part  of  the  Hindoo  institutions,  yet  wherever  pitllic 
office  or  politiccil  power  devolves  at  the  decease  of 
the  last  Incumbent,  the  succession  is  nearly  univer- 
sally according  to  the  rules  of  Primogeniture.  Sov- 
ereignties descend  therefore  to  the  eldest  son,  and 
where  the  affairs  of  the  Village  Community,  the 
corporate  unit  of  Hindoo  society,  are  confided  to  a 
single  manager,  it  is  generally  the  eldest  son  who 
takes  up  the  administration  at  his  parent's  death. 
All  offices,  indeed,  in  India,  tend  to  become  heredi- 


chap.  rn.     SUCCESSION  TO  POLITICAL  POTTER. 


221 


tary.  and,  when  their  nature  permits  it,  to  vest  iu 
the  eldest  member  of  the  oldest  stock.  Comparing 
these  Indian  successions  with  some  of  the  ruder  social 
organisations  which  have  survived  in  Europe  almost 
to  our  own  day,  the  conclusion  suggests  itself  that, 
when  Patriarchal  power  is  not  only  domes-tic  but 
political^  it  is  not  distributed  among  all  the  issue  at 
the  parent's  death,  but  is  the  birthright  of  the  eldest 
son.  The  chieftainship  of  a  Highland  clan,  for  ex- 
ample, followed  the  order  of  Primogeniture.  There 
seems,  in  truth,  to  be  a  form  of  family-dependency 
still  more  archaic  than  any  of  those  which  we  know 
from  the  primitive  records  of  organised  civil  societies. 
The  Agnatic  Union  of  the  kindred  in  ancient  Roman 
law,  and  a  multitude  of  similar  indications,  point  to 
a  period  at  which  all  the  ramifying  branches  of  the 
family  tree  held  together  in  one  organic  whole ;  and 
it  is  no  presumptuous  conjecture,  that,  when  the 
corporation  thus  formed  by  the  kindred  was  in  itself 
an  independent  society,  it  was  governed  by  the  eldest 
male  of  the  oldest  line.  It  is  true  that  we  have  no 
actual  knowledge  of  any  such  society.  Even  in  the 
most  elementary  communities,  family-organisations, 
as  we  know  them,  are  at  most  imperia  in  impei'io. 
But  the  position  of  some  of  them,  of  the  Celtic  clans 
in  particular,  was  sufficiently  near  independence 
within  historical  times  to  force  on  us  the  conviction 
that  they  were  once  separate  iin]>a-i«,  and  that  Pri- 
mogeniture regulated  the  succession  to  the  chieftain- 
ship.   It  is,  however,  necessary  to  be  on  our  guard 


228        ANCIENT  FORMS  OF  PRIMOGENITURE,    chap,  vii 


against  modern  associations  with  the  term  of  law. 
We  are  speaking  of  a  family-connection  still  closer 
and  more  stringent  than  any  with  which  we  are 
made  acquainted  by  Hindoo  society  or  ancient  Ro- 
man law.  If  the  Roman  Paterfamilias- was  visibly 
steward  of  the  family  possessions,  if  the  Hindoo 
father  is  only  joint-sharer  with  his  sons,  still  more 
emphatically  must  the  true  patriarchal  chieftain  be 
merely  the  administrator  of  a  common  fund. 

The  examples  of  succession  by  Primogeniture 
which  were  found  among  the  Benefices  may,  there- 
fore, have  been  imitated  from  a  system  of  family- 
government  known  to  the  invading  races,  though 
not  in  general  use.  Some  rude  tribes  may  have  still 
practised  it,  or,  what  is  still  more  probable,  society 
may  have  been  so  slightly  removed  from  its  more 
archaic  condition  that  the  minds  of  some  men  spon- 
taneously recurred  to  it,  when  they  were  called  upon 
to  settle  the  rules  of  inheritance  for  a  new  form  of 
property.  But  there  is  still  the  question,  Why  did 
Primogeniture  gradually  supersede  every  other  prin- 
ciple of  succession  ?  The  answer,  I  think,  is,  that 
European  society  decidedly  retrograded  during  the 
dissolution  of  the  Carlovingiau  empire.  It  sank  a 
point  or  two  back  even  from  the  miserably  low  de- 
gree which  it  had  marked  during  the  early  barbarian, 
monarchies.  The  great  characteristic  of  the  period 
was  the  feebleness,  or  rather  the  abeyance,  of  kingly 
and  therefore  of  civil  authority ;  and  hence  it  seems 
as  if,  civil  society  no  longer  cohering,  men  uni^r- 


ciiai>.  vn.      FALL  OF  CAELOVIXGIAN  EMPIRE. 


225 


sally  flung  themselves  back  on  a  social  organisation 
older  than  the  beginnings  of  civil  communities.  The 
lord  with  his  vassals,  during  the  ninth  and  tenth 
centuries,  may  be  considered  as  a  patriarchal  house- 
hold, recruited,  not  as  in  the  primitive  times  by 
Adoption,  but  by  Infeudation ;  and  to  such  a  con- 
federacy, succession  by  Primogeniture  was  a  source 
of  strength  and  durability.  So  long  as  the  land  was 
kept  together  on  which  the  entire  organisation 
rested,  it  was  powerful  for  defence  and  attack ;  to 
divide  the  land  was  to  divide  the  little  society,  and 
voluntarily  to  invite  aggression  in  an  era  of  univer- 
sal violence.  We  may  be  perfectly  certain  that  into 
this  preference  for  Primogeniture  there  entered  no 
idea  of  disinheriting  the  bulk  of  the  children  in 
favour  of  one.  Everybody  would  have  suffered  by 
the  division  of  the  fief.  Everybody  was  a  gainer 
by  its  consolidation.  The  Family  grew  stronger  by 
the  concentration  of  power  in  the  same  hands ;  nor 
is  it  likely  that  the  lord  who  was  invested  with  the 
inheritance  had  any  advantage  over  his  brethren  and 
kinsfolk  in  occupations,  interests,  or  indulgences.  It 
would  be  a  singular  anachronism  to  estimate  the 
privileges  succeeded  to  by  the  heir  of  a  fief,  by  the 
situation  in  which  the  eldest  son  is  placed  under  an 
English  strict  settlement. 

I  have  said  that  I  regard  the  early  feudal  con- 
federacies as  descended  from  an  archaic  form  of  the 
Family,  and  as  wearing  a  strong  resemblance  to  it, 
But  then  in  the  ancient  world,  and  in  the  societies 


230      EARLIER  AND  LATER"  PRIMOGENITURE,     chap,  vii 


which  have  not  passed  through  the  crucible  of  feu- 
dalism, the  Primogeniture  which  seems  to  have  pre- 
vailed never  transformed  itself  into  the  Primogeni- 
ture of  the  later  feudal  Europe.  When  the  group 
of  kinsmen  ceased  to  be  governed  through  a  series 
of  generations  by  a  hereditary  chief,  the  domain 
which  had  been  managed  for  all  appeal's  to  have 
been  equally  divided  among  all.  "Why  did  this  nol 
occur  in  the  feudal  world  ?  If  during  the  confusions 
of  the  first  feudal  period  the  eldest  son  held  the 
laud  for  the  behoof  of  the  whole  family,  why  was  it 
that  when  feudal  Europe  had  consolidated  itself,  and 
regular  communities  were  again  established,  the 
whole  family  did  not  resume  that  capacity  for  equal 
inheritance  which  had  belonged  to  Roman  and  Ger- 
man  alike  ?  The  key  which  unlocks  this  difficulty 
has  rarely  been  seized  by  the  writers  who  occupy 
themselves  in  tracing  the  genealogy  of  Feudalism. 
They  perceive  the  materials  of  the  feudal  institu- 
tions, but  they  miss  the  cement.  The  ideas  and 
social  forms  which  contributed  to  the  formation  of 
the  system  were  unquestionably  barbarian  and  ar 
chaic,  but,  as  soon  as  Courts  and  lawyers  were  called 
in  to  interpret  and  define  it,  the  principles  of  inter- 
pretation which  they  applied  to  it  were  those  of  the 
latest  Roman  jurisprudence,  and  were  therefore  ex- 
cessively refined  and  matured.  In  a  patriarchally 
governed  society,  the  eldest  sou  may  succeed  to  the 
government  of  the  Agnatic  group,  and  to  the  abso- 
lute disposal  of  its  property.    But  he  is  uot  there 


chap.  vii.      MODERN  VIEW  OF  CHIEFTAINSHIP.  231 


fore  a  true  proprietor.  He  has  correlative  duties 
not  involved  in  the  conception  of  proprietorship, 
but  quite  undefined  and  quite  incapable  of  definition. 
The  later  Roman  jurisprudence,  however,  like  our 
own  law,  looked  upon  uncontrolled  power  over 
property  as  equivalent  to  ownership,  and  did  not, 
and,  in  fact,  could  not,  take  notice  of  liabilities  of 
such  a  kind,  that  the  very  conception  of  them  be- 
longed to  a  period  anterior  to  regular  law.  The 
contact  of  the  refined  and  the  barbarous  notion  had 
inevitably  for  its  effect  the  conversion  of  the  eldest 
son  into  legal  proprietor  of  the  inheritance.  The 
clerical  and  secular  lawyers  so  defined  his  position 
from  the  first ;  but  it  was  only  by  insensible  degrees 
that  the  younger  brother,  from  participating  on 
equal  terms  in  all  the  dangers  and  enjoyments  of 
his  kinsman,  sank  into  the  priest,  the  soldier  of  for- 
tune,  or  the  hanger-on  of  the  mansion.  The  legal 
revolution  was  identical  with  that  which  occurred 
on  a  smaller  scale,  and  in  quite  recent  times,  through 
the  greater  part  of  the  Highlands  of  Scotland. 
When  called  in  to  determine  the  legal  powers  of  the 
chieftain  over  the  domains  which  gave  sustenance 
to  the  clan,  Scottish  jurisprudence  had  long  since 
passed  the  point  at  which  it  could  take  notice  of  the 
vague  limitations  on  completeness  of  dominion  im. 
posed  by  the  claims  of  the  clansmen,  and  it  was 
inevitable  therefore,  that  it  should  convert  the  pat- 
rimony of  many  into  the  estate  of  one. 

Fur  the  sake  of  simplicity,  I  have  called  the 


232 


FORMS  OF  PRIMOGENITURE. 


mode  of  succession  Primogeniture  whenever  a  single 
sou  or  descendant  succeeds  to  the  authority  over  a 
household  or  society.  It  is  remarkable,  however 
that  in  the  few  very  ancient  examples  which  remain 
to  us  of  this  sort  of  succession,  it  is  not  always  the 
eldest  son,  in  the  sense  familiar  to  us,  who  takes  up 
the  representation.  The  form  of  Primogeniture 
which  has  spread  over  Western  Europe  has  also  been 
perpetuated  among  the  Hindoos,  and  there  is  every 
reason  to  believe  that  it  is  the  normal  form.  Under 
it,  not  only  the  eldest  son,  but  the  eldest  line  is 
always  preferred.  If  the  eldest  sou  fails,  his  eldest 
son  has  precedence  not  only  over  brothers  but  over 
uncles ;  and,  if  he  too  fails,  the  same  rule  is  followed 
in  the  next  generation.  But  when  the  succession  is 
not  merely  to  civil  but  to  political  power,  a  diffi- 
culty may  present  itself  which  will  appear  of 
greater  magnitude  according  as  the  cohesion  of  so- 
ciety is  less  perfect.  The  chieftain  who  last  exer- 
cised authority  may  have  outlived  his  eldest  son, 
and  the  grandson  who  is  primaril}-  entitled  to  suc- 
ceed may  be  too  young  and  immature  to  undertake 
the  actual  guidance  of  the  community,,  and  the  ad- 
ministration of  its  affairs.  In  such  an  event,  the 
expedient  which  suggests  itself  to  the  more  settled 
societies  is  to  place  the  infant  heir  under  guardian- 
ship till  he  reaches  the  age  of  fitness  for  government. 
The  guardianship  is  generally  that  of  the  male 
Agnates  ;  but  it  is  remarkable  that  the  contingency 
supposed  is  one  of  the  rare  cases  in  which  ancient 


on  A  P.  Til. 


CELTIC  PRIMOGENITURE. 


233 


societies  have  consented  to  the  exercise  of  power  by 
women,  doubtless  out  of  respect  to  the  overshadow- 
ing claims  of  the  mother.  In  India,  the  widow  of 
a  Hindoo  sovereign  governs  in  the  name  of  her  in- 
fant son,  and  we  cannot  but  remember  that  the  cus- 
tom regulating  succession  to  the  throne  of  France 
— which,  whatever  be  its  origin,  is  doubtless  of  the 
highest  antiquity — preferred  the  queen-mother  to 
all  other  claimants  for  the  Regency,  at  the  same 
time  that  it  rigorously  excluded  all  females  from  the 
throne.  There  is,  however,  another  mode  of  obvia 
ting  the  inconvenience  attending  the  devolution  of 
sovereignty  on  an  infant  heir,  and  it  is  one  which 
would  doubtless  occur  spontaneously  to  rudely  or- 
ganised communities.  This  is  to  set  aside  the  infant 
heir  altogether,  and  confer  the  chieftainship  on  the 
eldest  surviving  male  of  the  first  generation.  The 
Celtic  clan  associations,  among  the  many  phenomena 
which  they  have  preserved  of  an  age  in  which  civil 
and  political  society  were  not  yet  even  rudimentarily 
separated,  have  brought  down  this  rule  of  succession 
to  historical  times.  With  them,  it  seems  to  have 
existed  in  the  form  of  a  positive  canon,  that,  failing 
the  eldest  son,  his  next  brother  succeeds  in  priority 
to  all  grandsons,  whatever  be  their  age  at  the  moment 
when  the  sovereignty  devolves.  Some  writers  have 
azplained  the  principle  by  assuming  that  the  Celtic 
customs  took  the  last  chieftain  as  a  sort  of  root  or 
stock,  and  then  gave  the  succession  to  the  descen- 
dant who  should  be  least  remote  from  him  ;  the  uncle 


234 


CELTIC  PRIMOGENITURE. 


chap,  vn 


thus  being  preferred  to  the  grandson  as  being  nearer 
to  the  common  root.  No  objection  can  be  taken  to 
this  statement  if  it  be  merely  intended  as  a  descrip- 
tion of  the  system  of  succession ;  but  it  would  be  a 
serious  error  to  conceive  the  men  who  first  adopted 
the  rule  as  applying  a  course  of  reasoning  which 
evidently  dates  from  the  time  when  feudal  schemes 
of  succession  began  to  be  debated  among  lawyers. 
The  true  origin  of  the  preference  of  the  uncle  to  the 
grandson  is  doubtless  a  simple  calculation  on  the  part 
of  rude  men  in  a  rude  society  that  it  is  better  to  be 
governed  by  a  grown  chieftain  than  by  a  child,  and 
that  the  younger  son  is  more  likely  to  have  come  to 
maturity  than  any  of  the  eldest  son's  descendants. 
At  the  same  time,  we  have  some  evidence  that  the 
form  of  Primogeniture  with  which  we  are  best  ac- 
quainted is  the  primary  form,  in  the  tradition  that 
the  assent  of  the  clan  was  asked  when  an  infant  heir 
was  passed  over  in  favour  of  his  uncle.  There  is  a 
tolerably  well  authenticated  instance  of  this  cere- 
mony in  the  annals  of  the  Scottish  Macdonalds; 
and  Irish  Celtic  antiquities,  as  interpreted  by  recent 
inquirers,  are  said  to  disclose  many  traces  of  similar 
practices.  The  substitution,  by  means  of  election, 
of  a  "worthier"  Agnatic  relative  for  an  elder  is  not 
unknown,  too,  in  the  system  of  the  Indian  Village 
Communities. 

Under  Mahometan  law,  which  has  probably  pre- 
served an  ancient  Arabian  custom,  inheritances  of 
property  are  divided  equally  among  sous,  the  daugh 


cn.vp.  tii. 


MAHOMETAN  RULE. 


235 


ters  taking  a  half  share;  but  if  any  of  the  children 
die  before  the  division  of  the  inheritance,  leaving 
issue  behind,  these  grandchildren  are  entirely  ex- 
cluded by  their  uncles  and  aunts.  Consistently  with 
this  principle,  the  succession,  when  political  authority 
devolves,  is  according  to  the  form  of  Primogeniture 
which  appears  to.  have  obtained  among  the  Celtic 
societies.  In  the  two  great  Mahometan  families  of 
the  West,  the  rule  is  believed  to  be,  that  the  uncle 
succeeds  to  the  throne  in  preference  to  the  nephew, 
though  the  latter  be  the  son  of  an  elder  brother: 
but  though  this  rule  has  been  followed  quite  recently 
both  in  Egypt  and  in  Turkey,  I  am  informed  that 
there  has  always  been  some  doubt  as  to  its  govern- 
ing the  devolution  of  the  Turkish  sovereignty.  The 
policy  of  the  Sultans  has  in  fact  generally  prevented 
cases  for  its  application  from  occurring,  and  it  is  pos- 
sible that  their  wholesale  massacres  of  their  younger 
brothers  may  have  been  perpetrated  quite  as  much 
in  the  interest  of  their  children  as  for  the  sake  of 
making  away  with  dangerous  competitors  for  the 
throne.  It  is  evident,  however,  that  in  polygamous 
societies  the  form  of  Primogeniture  will  always  tend 
to  vary.  Many  considerations  may  constitute  a 
claim  on  the  succession,  the  rank  of  the  mother,  for 
example,  or  her  degree  in  the  affections  of  the  father. 
Accordingly,  some  of  the  Indian  Mahometan  sov- 
ereigns, without  pretending  to  any  distinct  testa- 
mentary power,  claim  the  right  of  nominating  the 


236 


JEWISH  METHOD  OF  NOMINATION.     ciiap.  tii. 


son  who  is  to  succeed.  The  Messing  mentioned  in 
the  Scriptural  history  of  Isaac  and  his  sons  has  some 
times  been  spoken  of  as  a  will,  but  it  seems  rather 
to  have  been  a  mode  of  naming  an  eldest  son. 


CHAPTER  VIII. 


THE  EARLY  HISTORY  OF  PROPERTY. 


Tin-:  "Roman  Institutional  Treatises,  after  giving  then 
definition  of  the  various  forms  and  modifications  of 
ownership,  proceed  to  discuss  the  Natural  Modes  of 
Acquiring  Property.  Those  who  are  unfamiliar  with 
the  history  of  jurisprudence  are  not  likely  to  look 
upon  these  "natural  modes"  of  acquisition  as  pos- 
sessing, at  first  sight,  either  much  speculative  or 
much  practical  interest.  The  wild  animal  which  is 
snared  or  killed  by  the  hunter,  the  soil  which  is 
added  to  our  field  l>y  the  imperceptible  deposits  of 
a  river,  the  tree  which  strikes  its  roots  into  oui 
ground,  are  each  said  by  the  Roman  lawyers  to  be  ac- 
quired by  us  naturally.  The  older  jurisconsults  had 
doubtless  observed  that  such  acquisitions  were  uni- 
versally -auctioned  by  the  usages  of  the  little  socie- 
ties around  them,  and  thus  the  lawyers  of  a  later 
age,  finding  them  classed  in  the  ancient  Jus  ( Jentium. 
and  perceiving  them  to  be  of  the  simplest  deserip 
tiou,  allotted  them  a  place  among  the  ordinances 


238 


OCCUPANCY. 


CIIA.P.  VIII. 


Nature.  The  dignity  with  which  they  were  invested 
has  gone  on  increasing  in  modern  times  till  it  is  quite 
out  of  proportion  to  their  original  importance. 
Theory  has  made  them  its  favourite  food,  and  has 
enabled  them  to  exercise  the  most  serious  influence 
on  practice. 

It  will  be  necessary  for  us  to  attend  to  one  only 
among  these  "  natural  modes  of  acquisition, "  Occu- 
patio  or  Occupancy.  Occupancy  is  the  advisedly 
taking  possession  of  that  which  at  the  moment  is  the 
property  of  no  man,  with  the  view  (adds  the  tech- 
nical definition)  of  acquiring  property  in  it  for  your- 
self. The  objects  which  the  Roman  lawyers  called 
res  nullius — things  which  have  not  or  have  never 
had  an  owner — can  only  be  ascertained  by  enumer- 
ating them.  Among  things  which  never  had  an 
owner  are  wild  animals,  fishes,  wild  fowl,  jewels 
disinterred  for  the  first  time,  and  land  newly  dis- 
covered or  never  before  cultivated.  Anion"-  things 
which  have  not  an  owner  are  moveables  which  have 
been  abandoned,  lands  which  have  been  deserted, 
and  (an  anomalous  but  most  formidable  item)  the 
property  of  an  enemy.  In  all  these  objects  the  full 
rights  of  dominion  were  acquired  by  the  Occupant, 
who  first  took  possession  of  them  with  the  intention 
of  keeping  them  as  his  own — an  intention  which,  in 
certain  cases,  had  to  be  manifested  by  specific  acts 
It  is  not  difficult,  I  think,  to  understand  the  univer- 
sality which  caused  the  practice  of  Occupancy  to  be 
placed  by  one  generation  of  Roman  lawyers  in  the 


CHAP.  Yin. 


LAW  OF  CAPTUEE  IN  WAR. 


23y 


Law  common  to  all  Nations,  and  the  simplicity  which 
occasioned  its  being  attributed  by  another  to  the 
Law  of  Nature.  But  for  its  fortunes  in  modern  le- 
gal history  we  are  less  prepared  by  a  priori  consid- 
erations. The  Roman  principle  of  Occupancy,  and 
the  rules  into  which  the  jurisconsults  expanded  it, 
are  the  source  of  all  modern  International  Law  on 
the  subject  of  Capture  in  War  and  of  the  acquisition 
of  sovereign  rights  in  newly  discovered  countries. 
They  have  also  supplied  a  theory  of  the  Origin  of 
Property,  which  is  at  once  the  popular  theory,  and 
the  theory  which,  in  one  form  or  another,  is  acqui- 
esced in  by  the  great  majority  of  speculative  jurists. 

1  have  said  that  the  Roman  principle  of  Occu- 
pancy has  determined  the  tenor  of  that  chapter  of 
International  Law  which  is  concerned  with  Capture 
in  War.  The  Law  of  Warlike  Capture  derives  its 
rules  from  the  assumption  that  communities  are  re- 
mitted to  a  state  of  nature  by  the  outbreak  of  hos- 
tilities, and  that,  in  the  artificial  natural  condition 
thus  produced,  the  institution  of  private  property 
falls  into  abeyance  so  far  as  concerns  the  belligerents. 
As  the  later  writers  on  the  Law  of  Nature  have  al- 
ways been  anxious  to  maintain  that  private  proper- 
ty was  in  some  sense  sanctioned  by  the  system 
which  they  were  expounding,  the  hypothesis  that  an 
enemy's  property  is  res  nvlliu  s'  has  seemed  to  them 
perverse  and  shocking,  and  they  were  careful  to 
stigmatise  it  as  a  mere  fiction  of  jurisprudence.  But, 
as  soon  as  the  Law  of  Nature  is  traced  to  its  source 


210 


ANCIENT  LAW  OF  CAPTURE.         chap,  tul 


in  the  Jus  Gentium,  we  see  at  once  how  the  goods 
of  an  enemy  came  to  be  looked  upon  as  nobody's 
property,  and  therefore  as  capable  of  being  acquired 
by  the  first  occupant.  The  idea  would  occur  spon- 
taneously to  persons  practising  the  ancient  forms  of 
Warfare,  when  victory  dissolved  the  organisatiou  of 
the  conquering  army  and  dismissed  the  soldiers  to 
indiscriminate  plunder.  It  is  probable,  however,  that 
originally  it  was  only  moveable  property  which  was 
thus  permitted  to  be  acquired  by  the  Captor.  We 
know  on  independent  authority  that  a  very  different 
rule  prevailed  in  ancient  Italy  as  to  the  acquisition 
of  ownership  in  the  soil  of  a  conquered  country,  and 
we  may  therefore  suspect  that  the  application  of  the 
principle  of  occupancy  to  land  (always  a  matter  of 
difficulty)  dates  from  the  period  when  the  Jus  Gen- 
tium was  becoming  the  Code  of  Nature,  and  that  it 
is  the  result  of  a  generalisation  effected  by  the  juris- 
consults of  the  golden  age.  Their  dogmas  on  the 
point  are  preserved  in  the  Pandects  of  Justinian,  and 
amount  to  an  unqualified  assertion  that  enemy's  prop- 
erty of  every  sort  is  res  nullius  to  the  other  bellig- 
erent, and  that  Occupancy,  by  which  the  Captor 
makes  it  his  own,  is  an  institution  of  Natural  Law 
The  rules  which  International  jurisprudence  derives 
from  these  positions  have  sometimes  been  stigma- 
tised as  needlessly  indulgent  to  the  ferocity  and  cu- 
pidity of  combatants,  but  the  charge  has  been  made, 
I  think,  by  persons  who  are  unacquainted  with  the 
history  of  wars,  and  who  are  consequently  ignorant 


chap.  rm.   OCCUPANCY  AND  "WARLIKE  CAPTURE.  241 


how  great  an  exploit  it  is  to  command  obedience  for 
a  rule  of  any  kind.  The  Roman  principle  of  Occu 
pancy,  when  it  was  admitted  into  the  modern  law  of 
Capture  in  War,  drew  with  it  a  number  of  subordi 
nate  canons,  limiting  and  giving  precision  to  its  ope- 
ration, and  if  the  contests  which  have  been  waged 
since  the  treatise  of  Grotins  became  an  authority, 
are  compared  with  those  of  an  earlier  date,  it  will 
be  seen  that,  as  soon  as  the  Roman  maxims  were  re* 
ceived,  Warfare  instantly  assumed  a  more  tolerable 
complexion.  If  the  Roman  law  of  Occupancy  is  to 
be  taxed  with  having  had  pernicious  influence  on 
any  part  of  the  modern  Law  of  Xations,  there  is  an- 
other chapter  in  it  which  may  be  said,  with  some  rea- 
son, to  have  been  injuriously  affected.  In  applying 
to  the  discovery  of  new  countries  the  same  princi- 
ples which  the  Romans  had  applied  to  the  finding 
of  a  jewel,  the  Publicists  forced  into  their  service 
a  doctrine  altogether  unequal  to  the  task  expected 
from  it.  Elevated  into  extreme  importance  by  the 
discoveries  of  the  great  navigators  of  the  15th  and 
lGtli  centuries,  it  raised  more  disputes  than  it  solved. 
The  greatest  uncertainty  was  very  shortly  found  to 
exist  on  the  very  two  points  on  which  certainty  was 
most  required,  the  extent  of  the  territory  which  was 
acquired  for  his  sovereign  by  the  discoverer,  and  the 
nature  of  the  acts  which  were  necessary  to  complete 
the  apprehensio  or  assumption  of  sovereign  posses- 
ion. ^Moreover,  the  principle  itself,  conferring  as  it 
did  such  enormous  advantages  as  the  consequence  of 
16 


242 


RULE  OF  DISCOVERT. 


cnAP.  vin. 


a  piece  of  good  luck,  was  instinctively  mutinied 
against  by  some  of  the  most  adventurous  nations  in 
Europe,  the  Dutch,  the  English,  and  the  Portuguese. 
Our  own  countrymen,  without  expressly  denying  the 
rule  of  International  Law,  never  did,  in  practice,  ad 
mit  the  claim  of  the  Spaniards  to  engross  the  whole 
of  America  south  of  the  Gulf  of  Mexico,  or  that  of 
the  King  of  France  to  monopolise  the  valleys  of  the 
Ohio  and  the  Mississippi.  From  the  accession  of 
Elizabeth  to  the  accession  of  Charles  the  Second,  it 
cannot  be  said  that  there  was  at  any  time  thorough 
peace  in  the  American  waters,  and  the  encroach- 
ments of  the  JsTew  England  Colonists  on  the  territo- 
ry of  the  French  King  continued  for  almost  a  cen- 
tury longer.  Bentham  was  so  struck  with  the  con- 
fusion attending  the  application  of  the  legal  princi- 
ple, that  he  went  out  of  his  way  to  eulogise  the 
famous  Bull  of  Pope  Alexander  the  Sixth,  dividing 
the  undiscovered  countries  of  the  world  between  the 
Spaniards  and  the  Portuguese  by  a  line  drawn  one 
hundred  leagues  West  of  the  Azores ;  and,  grotesque 
as  his  praises  may  appear  at  first  sight,  it  may  be 
doubted  whether  the  arrangement  of  Pope  Alexan- 
der is  absurder  in  principle  than  the  rule  of  Public 
law,  which  gave  half  a  continent  to  the  monarch 
whose  servants  had  fulfilled  the  conditions  required 
by  Roman  jurisprudence  for  the  acquisition  of  prop- 
erty in  a  valuable  object  which  could  be  covered  by 
the  hand. 

To  all  who  pursue  the  inquiries  which  are  the 


cttap.  vin. 


ORIGIN  OF  EROEEETY. 


243 


subject  of  this  volume,  Occupancy  is  pre-eminently 
interesting  on  the  score  of  the  service  it  lias  beei. 
made  to  perform  for  speculative  jurisprudence,  in 
furnishing  a  supposed  explanation  of  the  origin  of 
private  property.  It  was  once  universally  believed 
that  the  proceeding  implied  in  Occupancy  was  iden- 
tical with  the  process  by  which  the  earth  and  its 
fruits,  which  were  at  first  in  common,  became  the 
allowed  property  of  individuals.  The  course  of 
thought  which  led  to  this  assumption  is  not  difficult 
to  understand,  if  we  seize  the  shade  of  difference 
which  separates  the  ancient  from  the  modern  con- 
ception of  Natural  Law.  The  Roman  lawyers  had 
laid  down  that  Occupancy  was  one  of  the  Natural 
modes  of  acquiring  property,  and  they  undoubtedly 
believed  that,  were  mankind  living  under  the  institu- 
tions of  Nature,  Occupancy  would  be  one  of  their 
practices.  How  far  they  persuaded  themselves  that 
such  a  condition  of  the  race  had  ever  existed,  is  a 
point,  as  I  have  already  stated,  which  their  language 
leaves  in  much  uncertainty ;  but  they  certainly  do 
seem  to  have  made  the  conjecture,  which  has  at  all 
times  possessed  much  plausibility,  that  the  institution 
of  property  was  not  so  old  as  the  existence  of  man- 
kind. Modern  jurisprudence,  accepting  all  their  dog- 
mas without  reservation,  went  far  beyond  them  in 
the  eager  curiosity  with  which  it  dwelt  on  the  sup- 
posed  state  of  Nature.  Since  then  it  had  received  the 
position  that  the  earth  and  its  fruits  were  once  .  £ 
nulling  and  since  its  peculiar  view  of  Nature  led  it 


244 


ORIGIN  OF  PROPERTY. 


chip,  vin 


to  assume  without  hesitation  that  the  human  race 
had  actually  practised  the  Occupancy  of  res  mill  ins 
long  before  the  organisation  of  civil  societies,  the 
inference  immediately  suggested  itself  that  Occu- 
pancy was  the  process  by  which  the  "  no  man's 
goods  "  of  the  primitive  world  became  the  private 
property  of  individuals  in  the  world  of  history.  It 
would  be  wearisome  to  enumerate  the  jurists  who 
have  subscribed  to  this  theory  in  one  shape  or  an- 
other, and  it  is  the  less  necessary  to  attempt  it  be- 
cause Blackstone,  who  is  always  a  faithful  index  of 
the  average  opinions  of  his  day,  has  summed  them 
up  in  his  2d  book  and  1st  chapter. 

"  The  earth,"  he  writes,  "  and  all  things  therein 
were  the  general  property  of  mankind  from  the 
immediate  gift  of  the  Creator.  Not  that  the  com- 
munion of  goods  seems  ever  to  have  been  applical  >le, 
even  in  the  earliest  ages,  to  aught  but  the  substance 
of  the  thing ;  nor  could  be  extended  to  the  use  of 
it.  For,  by  the  law  of  nature  and  reason,  he  who 
first  began  to  use  it  acquired  therein  a  kind  of 
transient  property  that  lasted  so  long  as  he  was  using 
it,  and  no  longer  ;  or  to  speak  with  greater  precision, 
the  right  of  possession  continued  for  the  same  time 
only  that  the  act  of  possession  lasted.  Thus  the 
ground  was  in  common,  and  no  part  was  the  perma- 
nent property  of  any  man  in  particular;  yet  who- 
ever was  in  the  occupation  of  any  determined  spot 
of  it,  for  rest,  for  shade,  or  the  like,  acquired  for  the 
time  a  sort  of  ownership,  from  which  it  would  have 


CI3A.P.  Tin. 


BLACKSTONE^  THEORY. 


245 


been  unjust  and  contrary  to  the  law  of  nature  to 
have  driven  hiin  by  force,  but  the  instant  that  he 
quitted  the  use  of  occupation  of  it,  another  might 
seize  it  without  injustice."  He  then  proceeds  to 
argue  that  "  when  mankind  increased  in  number,  it 
became  necessary  to  entertain  conceptions  of  more 
permanent  dominion,  and  to  appropriate  to  indi- 
viduals not  the  immediate  use  only,  but  the  very 
substance  of  the  thing  to  be  used." 

Some  ambiguities  of  expression  in  this  passage 
lead  to  the  suspicion  that  Blackstone  did  not  quite 
understand  the  meaning  of  the  proposition  which 
he  found  in  his  authorities,  that  property  in  the 
earth's  surface  was  first  acquired,  under  the  law  of 
Nature,  by  the  occupant ;  but  the  limitation  which 
designedly  or  through  misapprehension  he  has  im- 
posed on  the  theory  brings  it  into  a  form  which  it 
has  not  infrequently  assumed.  Many  writers  more 
famous  than  Blackstone  for  precision  of  language 
have  laid  down  that,  in  the  beginning  of  things. 
Occupancy  first  gave  a  right  against  the  world  to  an 
exclusive  but  temporary  enjoyment,  and  that  after- 
wards this  right,  while  it  remained  exclusive,  became 
perpetual.  Their  object  in  so  stating  their  theory 
was  to  reconcile  the  doctrine  that  in  the  state  of 
Nature  res  nullius  became  property  through  Occu- 
pancy,  with  the  inference  which  they  drew  from  the, 
Scriptural  history  that  the  Patriarchs  did  not  at  first 
permanently  "appropriate  the  soil  which  had  been 
grazed  over  by  thei*  flocks  and  herds. 


246 


BLACKSTOXE'S  THEORY. 


CHAP.  TiU. 


The  only  criticism  which  could  be  directly  ap- 
plied to  the  theory  of  Blackstone  would  consist  in 
inquiring  whether  the  circumstances  which  make  up 
his  picture  of  a  primitive  society  are  more  or  less 
probable  than  other  incidents  which  could  be  ima- 
gined with  equal  readiness.  Pursuing  this  method 
of  examination,  we  might  fairly  ask  whether  the 
man  who  had  occupied  (Blackstone  evidently  uses 
this  word  with  its  ordinary  English  meaning)  a  par- 
ticular spot  of  ground  for  rest  or  shade  would  be 
permitted  to  retain  it  without  disturbance.  The 
chances  surely  are  that  his  right  to  possession  would 
be  exactly  coextensive  with  his  power  to  keep  it, 
and  that  he  would  be  constantly  liable  to  disturbance 
by  the  first  comer  who  coveted  the  spot  and  thought 
himself  strong  enough  to  drive  away  the  possessor. 
But  the  truth  is  that  all  such  cavil  at  these  positions 
is  perfectly  idle  from  the  very  baselessness  of  the 
positions  themselves.  "What  mankind  did  in  the 
primitive  state  may  not  be  a  hopeless  subject  of  in- 
quiry, but  of  their  motives  for  doing  it  it  is  impos- 
sible to  know  anything.  These  sketches  of  the 
plight  of  human  beings  in  the  first  ages  of  the  world 
are  effected  by  first  supposing  mankind  to  be  di- 
vested of  a  great  part  of  the  circumstances  by  which 
they  are  now  surrounded,  and  by  then  assuming 
that,  in  the  condition  thus  imagined,  they  would  pre- 
serve the  same  sentiments  and  prejudices  by  which 
they  are  now  actuated, — although,  in  fact,  these 
Bentiments  may  have  been  created  and  engendered 


APHORISM  OF  SAVIGNY. 


247 


by  those  very  circumstances  of  which,  by  the  hy 
pothesis,  they  are  to  be  stripped. 

There  is  an  aphorism  of  Savigny  which  has  been 
sometimes  thought  to  countenance  a  view  of  the 
origin  of  property  somewhat  similar  to  the  theories 
epitomised  by  Blackstone.  The  great  German  jurist 
has  laid  down  that  all  Property  is  founded  on  Ad- 
verse Possession  ripened  by  Prescription.  It  is  only 
with  respect  to  Roman  law  that  Savigny  makes  this 
statement,  and  before  it  can  be  fully  appreciated 
much  labour  must  be  expended  in  explaining  and 
defining  the  expressions  employed.  His  meaning 
will,  however,  be  indicated  with  sufficient  accuracy 
if  we  consider  him  to  assert  that,  how  far  soever  we 
carry  our  inquiry  into  the  ideas  of  property  received 
among  the  Romans,  however  closely  we  approach  in 
tracing  them  to  the  infancy  of  law,  we  can  get  no 
farther  than  a  conception  of  ownership  involving  the 
three  elements  in  the  canon — Possession,  Adverse- 
ness  of  Possession,  that  is,  a  holding  not  permissive 
or  subordinate,  but  exclusive  against  the  world,  and 
Prescription,  or  a  period  of  time  during  which  the 
Adverse  Possession  has  uninterruptedly  continued. 
It  is  exceedingly  probable  that  this  maxim  might  be 
BIUlQci&ted  with  more  generality  than  was  allowed 
to  it  by  its  author,  and  that  no  sound  or  safe  con- 
clusion can  be  looked  for  from  investigations  into 
any  system  of  laws  which  are  pushed  farther  bark 
than  the  point  at  which  these  combined  ideas  con. 
stitute  the  notion  of  proprietary  right.    Meant ime, 


248 


TRUE  ORIGIN"  OF  OCCUPANCY. 


CHAP.  TIH 


so  far  from  hearing  out  the  popular  theory  of  the 
origin  of  property,  Savigny's  canon  is  particularly 
valuable  as  directing  our  attention  to  its  weakest 
point.  In  the  view  of  Blackstone  and  those  whom 
he  follows,  it  was  the  mode  of  assuming  the  exclusive 
enjoyment  which  mysteriously  affected  the  minds  of 
the  fathers  of  our  race.  But  the  mystery  does  not 
reside  here.  It  is  not  wonderful  that  property  began 
in  adverse  possession.  It  is  not  surprising  that  the 
first  proprietor  should  have  been  the  strong  man 
armed  who  kept  his  goods  in  peace.  But  why  it 
was  that  lapse  of  time  created  a  sentiment  of  respect 
for  his  possession — which  is  the  exact  source  of  the 
universal  reverence  of  mankind  for  that  which  has 
for  a  long  period  de  facto  existed — are  questions 
really  deserving  the  profoundest  examination,  but 
lying  far  beyond  the  boundary  of  our  present  in- 
quiries. 

Before  pointing  out  the  quarter  in  which  we  may 
hope  to  glean  some  information,  scanty  and  uncer- 
tain at  best,  concerning  the  early  history  of  proprie- 
tary right,  I  venture  to  state  my  opinion  that  the 
popular  impression  in  reference  to  the  part  played 
by  Occupancy  in  the  first  stages  of  civilisation  di- 
rectly reverses  the  truth.  Occupancy  is  the  advised 
assumption  of  physical  possession;  and  the  notion 
that  an  act  of  this  description  confers  a  title  to  "  res 
nullms,"  so  far  from  being  characteristic  of  very 
early  societies,  is  in  all  probability  the  growth  of 
a  refined  jurisprudence  and  of  a  settled  condition  of 


chap.  Tin.    OBJECTIONS  TO  POPULAR  THEORY.  249 


the  laws.  It  is  only  when  the  rights  of  property 
have  gained  a  sanction  from  long  practical  inviola 
bility,  and  when  the  vast  majority  of  the  objects  of 
enjoyment  have  been  subjected  to  private  ownership, 
that  mere  possession  is  allowed  to  invest  the  first 
possessor  with  dominion  over  commodities  in  which 
no  prior  proprietorship  has  been  asserted.  The  sen- 
timent in  which  this  doctrine  originated  is  absolutely 
irreconcilable  with  that  infrequency  and  uncertainty 
of  proprietary  rights  which  distinguish  the  begin- 
nings of  civilisation.  Its  true  basis  seems  to  be,  not 
an  instinctive  bias  towards  the  institution  of  Prop- 
erty, but  a  presumption,  arising  out  of  the  long  con- 
tinuance of  that  institution,  that  everything  wight 
to  have  an  owner.  When  possession  is  taken  of  a 
"res  nullius,"  that  is,  of  an  object  which  is  not,  or 
has  never  been,  reduced  to  dominion,  the  possessor 
is  permitted  to  become  proprietor  from  a  feeling 
that  all  valuable  things  are  naturally  the  subjects  of 
an  exclusive  enjoyment,  and  that  in  the  given  case 
there  is  no  one  to  invest  with  the  right  of  property 
except  the  Occupant.  The  Occupant,  in  short,  be- 
comes the  owner,  because  all  things  are  presumed  to 
be  somebody's  property  and  because  no  one  can  be 
pointed  out  as  having  a  better  right  than  he  to  the 
proprietorship  of  this  particular  thing. 

Even  were  there  no  other  objection  to  the  de- 
scriptions of  mankind  in  their  natural  state  which 
we  have  been  discussing,  there  is  one  particular  in 
which  they  are  fatally  at  variance  with  the  authentic 


250  OBJECTIONS  10  POPULAE  TI1EOEY.    cdai-.  rsm 


evidence  possessed  by  us.  It  will  be  observed,  that 
the  acts  and  motives  which  these  theories  suppose 
are  the  acts  and  motives  of  Individuals.  It  is  each 
Individual  who  for  himself  subscribes  the  Social 
Compact.  It  is  some  shifting  sandbank  in  which 
the  grains  are  Individual  men,  that  according  to  the 
theory  of  Hobbes  is  hardened  into  the  social  rock 
by  the  wholesome  discipline  of  force.  It  is  an  Indi- 
vidual who,  in  the  picture  drawn  by  Blackstone,  ltis 
in  the  occupation  of  a  determined  spot  of  ground 
for  rest,  for  shade,  or  the  like."  The  vice  is  one 
which  necessarily  afflicts  all  the  theories  descended 
from  the  Natural  Law  of  the  Romans,  which  differed 
principally  from  their  Civil  Law  in  the  account 
which  it  took  of  Individuals,  and  which  has  ren- 
dered precisely  its  greatest  service  to  civilisation  in 
enfranchising  the  individual  .from  the  authority  of 
archaic  society.  But  Ancient  Law,  it  must  again  be 
repeated,  knows  next  to  nothing  of  Individuals.  It 
is  concerned  not  witli  Individuals,  but  with  Families, 
not  with  single  human  beings,  but  groups.  Even 
when  the  law  of  the  State  has  succeeded  in  permea- 
ting the  small  circles  of  kindred  into  which  it  had 
originally  no  means  of  penetrating,  the  view  it  takes 
of  Individuals  is  curiously  different  from  that  taken 
by  jurisprudence  in  its  maturest  stage.  The  lite  of 
each  citizen  is  not  regarded  as  limited  by  birth  and 
death  ;  it  is  but  a  continuation  of  the  existence  of 
his  forefathers,  and  it  will  be  prolonged  in  the  ex 
istence  of  his  descendants. 


opap.  Tin.    INFLUENCE  OF  EOMAN  CLASSIFICATION.  251 


The  Roman  distinction  between  the  Law  of  Per 
sons  and  the  Law  of  Things,  which  though  extremely 
convenient  is  entirely  artificial,  has  evidently  done 
much  to  divert  inquiry  on  the  subject  before  us  from 
the  true  direction.  The  lessons  learned  in  discussing 
the  Jus  Personaruin  have  been  forgotten  where  the 
Jus  Rerum  is  reached,  and  Property,  Contract,  and 
Delict,  have  been  considered  as  if  no  hints  concern- 
ing their  original  nature  were  to  be  gained  from  the 
facts  ascertained  respecting  the  original  condition 
of  Persons.  The  futility  of  this  method  would  be 
manifest  if  a  system  of  pure  archaic  law  could  be 
brought  before  us,  and  if  the  experiment  could  be 
tried  of  applying  to  it  the  Roman  classifications. 
It  would  soon  be  seen  that  the  separation  of  the 
Law  of  Persons  from  that  of  Things  has  no  meaning 
in  the  infancy  of  law,  that  the  rules  belonging  to  the 
two  departments  are  inextricably  mingled  together, 
and  that  the  distinctions  of  the  later  jurists  are  ap- 
propriate only  to  the  later  jurisprudence.  From 
what  has  been  said' in  the  earlier  portions  of  this 
treatise,  it  will  be  gathered  that  there  is  a  strong  a 
priori  improbability  of  our  obtaining  any  clue  to 
the  early  history  of  property,  if  we  confine  our  no- 
tice to  the  proprietary  rights  of  individuals.  It  is 
more  than  likely  that  joint-ownership,  and  not  sepa- 
rate ownership,  is  the  really  archaic  institution,  and 
that  the  forms  of  property  which  will  afford  as  in- 
struction will  be  those  which  are  associated  with 
the  rights  of  families  and  of  groups  of  kindred. 


252 


INDIAN  VILLAGE  COMMUNITIES.      chap.  rm. 


The  Roman  jurisprudence  will  not  here  assist  in 
enlightening  us,  for  it  is  exactly  the  Roman  jurispru 
deuce  which,  transformed  by  the  theory  of  Natural 
Law,  has  bequeathed  to  the  moderns  the  impression 
that  individual  ownership  is  the  normal  state  of 
proprietary  right,  and  that  ownership  in  common  by 
groups  of  men  is  only  the  exception  to  a  general 
rule.  There  is,  however,  one  community  which  will 
always  be  carefully  examined  by  the  inquirer  who 
is  in  quest  of  any  lost  institution  of  primeval  society. 
How  far  soever  any  such  institution  may  have  under- 
gone change  among  the  branch  of  the  In  do-European 
family  which  has  been  settled  for  ages  in  India,  it 
will  seldom  be  found  to  have  entirely  cast  aside  the 
shell  in  which  it  was  originally  reared.  It  happens 
that,  among  the  Hindoos,  we  do  find  a  form  of 
ownership  which  ought  at  once  to  rivet  our  atten- 
tion from  its  exactly  fitting  in  with  the  ideas  which 
our  studies  in  the  Law  of  Persons  would  lead  us  to 
entertain  respecting  the  original  condition  of  prop 
erty.  The  Village  Community  of  India  is  at  once 
an  organised  patriarchal  society  and  an  assemblage 
of  co-proprietors.  The  personal  relations  to  each 
other  of  the  men  who  compose  it  are  indistinguish- 
ably  confounded  with  their  proprietary  rights,  and 
to  the  attempts  of  English  functionaries  to  separate 
the  two  may  be  assigned  some  of  the  most  formi- 
dable miscarriages  of  Anglo-Indian  administration. 
The  Village  Community  is  known  to  be  of  immense 
antiquity.    In  whatever  direction  research  has  been 


cnAP.  vni. 


CO-OWNERSHIP. 


253 


pushed  into  Indian  history,  general  or  local,  it  has 
always  found  the  Community  in  existence  at  the 
farthest  point  of  its  progress.  A  great  number  of 
intelligent  and  observant  writers,  most  of  whom  had 
no  theory  of  any  sort  to  support  concerning  its  na 
tare  and  origin,  agree  in  considering  it  the  least 
destructible  institution  of  a  society  which  never 
willingly  surrenders  any  one  of  its  usages  to  innova- 
tion. Conquests  and  revolutions  seem  to  have  swept 
over  it  without  disturbing  or  displacing  it,  and  the 
most  beneficent  systems  of  government  in  India  have 
always  been  those  which  have  recognised  it  as  the 
basis  of  administration. 

The  mature  Roman  law,  and  modern  jurispru- 
dence following  in  its  wake,  look  upon  co-ownership 
as  an  exceptional  and  momentary  condition  of  the 
rights  of  property.  This  view  is  clearly  indicated 
in  the  maxim  which  obtains  universally  in  Western 
Europe,  Nemo  in  communione  potest  invitus detineri 
("  No  one  can  be  kept  in  co-proprietorship  against 
his  will  ").  But  in  India  this  order  of  ideas  is  re- 
versed, and  it  may  be  said  that  separate  proprietor- 
ship is  always  on  its  way  to  become  proprietorship 
in  common.  The  process  has  been  adverted  to  al- 
ready. As  soon  as  a  son  is  born,  he  acquires  a  vested 
interest  in  his  father's  substance,  and  on  attaining 
years  of  discretion  he  is  even,  in  certain  contingen- 
cies, permitted  by  the  letter  of  the  law  to  call  for  a 
partition  of  the  family  estate.  As  a  fact,  however, 
ft  division  rarely  takes  place  even  at  the  death  of 


254 


VILLAGE  COMMUNITIES.  chap.  Tin 


the  father,  .and  the  property  constantly  remains  un- 
divided for  several  generations,  though  every  mem- 
ber of  every  generation  has  a  legal  right  to  aa 
undivided  share  in  it.  The  domain  thus  held  in 
common  is  sometimes  administered  b}^  an  elected 
manager,  but  more  generally,  and  in  some  provinces 
always,  it  is  managed  by  the  eldest  agnate,  by  the 
eldest  representative  of  the  eldest  line  of  the  stock. 
Such  an  assemblage  of  joint  proprietors,  a  body  of 
kindred  holding  a  domain  in  common,  is  the  simplest 
form  of  an  Indian  Village  Community,  but  the 
Community  is  more  than  a  brotherhood  of  relatives 
and  more  than  an  association  of  partners.  It  is  an 
organised  society,  and  besides  providing  for  the 
management  of  the  common  fund,  it  seldom  fails  to 
provide,  by  a  complete  staff  of  functionaries,  for  in- 
ternal government,  for  police,  for  the  administration 
of  justice,  and  for  the  apportionment  of  taxes  and 
public  duties. 

The  process  which  I  have  described  as  that  under 
which  a  Village  Community  is  formed,  may  be  re- 
garded as  typical.  Yet  it  is  not  to  be  supposed  that 
every  Village  Community  in  India  drew  together 
in  so  simple  a  manner.  Although,  in  the  North  of 
India,  the  archives,  as  I  am  informed,  almost  inva- 
riably show  that  the  Community  was  founded  by  a 
single  assemblage  of  blood-relations,  they  also  supply 
information  that  men  of  alien  extraction  have  al- 
ways, from  time  to  time,  been  engrafted  on  it,  and 
a  mere  purchaser  of  a  share  may  generally,  under 


chap.  via.  VILLAGE  COMMODITIES. 


255 


certain  conditions,  be  admitted  to  the  brotherhood. 
In  the  South  of  the  Peninsula  there  are  often  Com- 
munities which  appear  to  have  sprung  not  from  one 
but.  from  two  or  more  families ;  and  there  are  some 
whose  composition  is  known  to  be  entirely  artificial 
indeed,  the  occasional  aggregation  of  men  of  differ- 
ent castes  in  the  same  society  is  fatal  to  the  hypothe- 
sis of  a  common  descent.  Yet  in  all  these  brother- 
hoods either  the  tradition  is  preserved,  or  the 
assumption  made,  of  an  original  common  parentage. 
Mountstuart  Elphinstone,  who  writes  more  particu- 
larly of  the  Southern  Village  Communities,  observes 
of  them  (History  of  India,  i.  126)  :  "The  popular 
notion  is  that  the  Village  landholders  are  all  de- 
scended from  one  or  more  individuals  who  settled 
the  Village ;  and  that  the  only  exceptions  are 
formed  by  persons  who  have  derived  their  rights 
by  purchase  or  otherwise  from  members  of  the 
original  stock.  The  supposition  is  confirmed  by  the 
fact  that,  to  this  day,  there  are  only  single  families 
of  landholders  in  small  villages  and  not  many  in 
large  ones;  but  each  has  branched  out  into  so  many 
members  that  it  is  not  uncommon  for  the  whole 
agricultural  labour  to  be  done  by  the  landholders, 
without  the  aid  either  of  tenants  or  of  labourers. 
The  rights  of  the  landholders  are  theirs  collectively, 
and,  though  they  almost  always  have  a  more  or  less 
perfect  partition  of  them,  they  never  have  an  entire 
Beparatiou.  A  landholder,  for  instance,  can  sell  or 
mortgage  his  rights;  but  he  must  first  have  the  con 


256 


VILLAGE  COMMUNITIES. 


chap,  vra 


-  sent  of  the  Village,  and  the  purchaser  steps  exactly 
into  his  place  and  takes  up  all  his  obligations.  If  a 
family  becomes  extinct,  its  share  returns  to  the 

»  common  stock.'; 

Some  considerations  which  have  been  offered  in 
the  fifth  chapter  of  this  volume  will  assist  the  reader, 
I  trust,  in  appreciating  the  significance  of  Elphin- 
stone's  language.  No  institution  of  the  primitive 
world  is  likely  to  have  been  preserved  to  our  clay, 
unless  it  has  acquired  an  elasticity  foreign  to  its 
original  nature  through  some  vivifying  legal  fiction. 
The  Village  Community  then  is  not  necessarily  an 
assemblage  of  blood-relations,  but  it  is  either  such  an 
assemblage  or  a  body  of  co-proprietors  formed  on 
the  model  of  an  association  of  kinsmen.  The  type 
with  which  it  should  be  compared  is  evidently  not 
the  Roman  Family,  but  the  Roman  Gens  or  House. 
The  Gens  was  also  a  group  on  the  model  of  the 
family  ;  it  was  the  famity  extended  by  a  variety  of 
fictions  of  which  the  exact  nature  was  lost  in  an- 
tiquity. In  historical  times,  its  leading  characteris- 
tics were  the  very  two  which  Elphinstone  remarks 
in  the  Village  Community.  There  was  always  the 
assumption  of  a  common  origin,  an  assumption  sonic 
times  notoriously  at  variance  with  fact ;  and,  to  re- 
peat the  historian's  words,  "if  a  family  became 
extinct,  its  share  returned  to  the  common  stock.'"  In 
old  Roman  law,  unclaimed  inheritances  escheated  to 
the  Gentiles.  It  is  further  suspected  by  all  who 
have  examined  their  history  that  the  Communities, 


en  4 p.  Tin. 


TYPE  OF  THE  COMMUNITY. 


257 


like  the  Geutes,  have  been  very  general!}  adultera 
ted  by  the  admission  of  strangers,  but  the  exact  mode 
of  al  (sorption  cannot  now  be  ascertained.  At  present, 
they  are  recruited,  as  Elphinstone  tells  us,  by  the 
admission  of  purchasers,  with  the  consent  of  the 
brotherhood.  The  acquisition  of  the  adopted  mem- 
ber is,  however,  of  the  nature  of  a  universal  succes- 
sion; together  with  the  share  he  has  bought,  he 
succeeds  to  the  liabilities  which  the  vendor  had 
incurred  towards  the  aggregate  group.  He  is  an 
Emptor  Familise,  and  inherits  the  legal  clothing  of 
the  person  whose  place  he  begins  to  fill.  The  con- 
sent of  the  whole  brotherhood  required  for  his  ad- 
mission may  remind  us  of  the  consent  which  the 
Comitia  Curiata,  the  Parliament  of  that  larger  broth- 
erhood of  self-styled  kinsmen,  the  ancient  Roman 
commonwealth,  so  strenuously  insisted  on  as  essential 
to  the  legalisation  of  an  Adoption  or  the  confirmation 
rvf  a  Will. 

Tin;  tokens  of  an  extreme  antiquity  are  discov- 
erable in  almost  every  single  feature  of  the  Indian 
Village  Communities.  AYe  have  so  many  independ- 
ent .reasons  for  suspecting  that  the  infancy  of  law 
is  distinguished  by  the  prevalence  of  co-ownership, 
by  the  intermixture  of*  personal  with  proprietary 
rights,  and  by  the  confusion  of  public  with  private 
duties,  that  we  should  be  justified  in  deducing  many 
important  conclusions  from  our  observation  of  these 
proprietary  brotherhoods,  even  if  no  similarly  com 
pounded  societies  could  be  detected  in  any  other 
17 


258 


RUSSIAN  VILLAGES. 


CHAI\  V1IL 


part  of  the  world.  It  happens,  however,  that  much 
earnest  curiosity  has  been  very  recently  attracted  to 
a  similar  set  of  phenomena  in  those  parts  of  Europe 
which  have  been  most  slightly  affected  by  the  feudal 
transformation  of  property,  and  which  in  many  im 
portaut  particulars  have  as  close  an  affinity  with  the 
Eastern  as  with  the  Western  world.  The  researches 
of  M.  de  Haxthausen,  M.  Tengoborski,  and  others, 
have  shown  us  that  the  Russian  villages  are  not  for- 
tuitous  assemblages  of  men,  nor  are  they  unions 
founded  on  contract ;  they  are  naturally  organised 
communities  like  those  of  India.  It  is  true  that  these 
villages  are  always  in  theory  the  patrimony  of  some 
noble  proprietor,  and  the  peasants  have  within  his- 
torical times  been  converted  into  the  predial,  and  to 
a  great  extent  into  the  personal,  serfs  of  the  seignior. 
But  the  pressure  of  this  superior  ownership  has 
never  crushed  the  ancient  organisation  of  the  village, 
and  it  is  probable  that  the  enactment  of  the  Czar  of 
Russia,  who  is  supposed  to  have  introduced  serfdom, 
was  really  intended  to  prevent  the  peasants  from 
abandoning  that  co-operation  without  which' the  old 
Bocial  order  could  not  long  be  maintained.  In  the 
assumption  of  an  agnatic  connection  between  the 
villagers,  in  the  blending  of  personal  rights  with 
privileges  of  ownership,  and  in  a  variety  of  sponta- 
neous provisions  for  internal  administration,  the 
Russian  village  appears  to  be  a  nearly  exact  repeti- 
tion of  the  Indian  Community;  but  there  is  one 
important  difference  which  we  note  with  the  greatest 


chap.  Tin.    RUSSIAN  AXD  CROATIAN  VILLAGES.  23& 


interest.  The  co-owners  of  an  Indian  village,  though 
their  property  is. blended,  have  their  rights  distinct, 
and  this  separation  of  rights  is  complete  and  con- 
tinues indefinitely.  The  severance  of  rights  is  also 
theoretically  complete  in  a  Russian  village,  but  there 
it  is  only  temporary*  After  the  expiration  of  a 
given,  but  not  in  all  cases  of  the  same,  period,  sepa- 
rate ownerships  are  extinguished,  the  land  of  the 
village  is  thrown  into  a  mass,  and  then  it  is  re-dis- 
tributed among  the  families  composing  the  commu- 
nity, according  to  their  number.  This  repartition 
having  been  effected,  the  rights  of  families  and  of 
individuals  are  again  allowed  to  branch  out  into 
various  lines,  which  they  continue  to  follow  till 
another  period  of  division  comes  round.  An  even 
more  curious  variation  from  this  type  of  ownership 
occurs  in  some  of  those  countries  which  long  formed 
a  debate-able  land  between  the  Turkish  Empire  and 
the  possessions  of  the  House  of  Austria.  In  Servia, 
in  Croatia,  and  the  Austrian  Sclavonia,  the  villages 
are  also  brotherhoods  of  persona  who  are  at  once  co- 
owners  and  kinsmen  ;  but  there  the  internal  arrange- 
ments of  the  community  differ  from  those  adverted 
to  in  the  last  two  examples.  The  substance  of  the 
common  property  is  in  this  case  neither  divided  in 
practice  nor  considered  in  theory  as  divisible,  but  the 
entire  land  is  cultivated  by  the  combined  labour  of 
all  the  villagers,  and  the  produce  is  annually  distrib- 
uted among  the  households,  sometimes  according  to 
their  supposed  wants,  sometimes  according  to  rules 


260 


VARIETIES  OF  THE  COMMUNITY.      ouai\  vin. 


which  give  to  particular  persons  a  fixed  share  of  the 
usufruct.  All  these  practices  are  traced  by  the 
j mists  of  the  East  of  Europe  to  a  principle  which  ig 
asserted  to  be  found  in  the  earliest  Sclavonian  laws, 
the  principle  that  the  property  of  families  cannot  be 
divided  for  a  perpetuity. 

The  great  interest  of  these  phenomena  in  an  in- 
quiry like  the  present  arises  from  the  light  they 
throw  on  the  development  of  distinct  proprietary 
rights  imide  the  groups  by  which  property  seems  to 
have  been  originally  held.  We  have  the  strongest 
reason  for  thinking  that  property  once  belonged  not 
to  individuals  nor  even  to  isolated  families,  but  to 
larger  societies  composed  on  the  patriarchal  model ; 
but  the  mode  of  transition  from  ancient  to  modern 
ownerships,  obscure  at  best,  would  have  been  infi- 
nitely obscurer  if  several  distinguishable  forms  of 
Village  Communities  had  not  been  discovered  and 
examined.  It  is  worth  while  to  attend  to  the  varie- 
ties of  internal  arrangement  within  the  patriarchal 
groups  which  are,  or  were  till  recently,  observable 
among  races  of  Indo-European  blood.  The  chiefs  of 
the  ruder  Highland  clans  used,  it  is  said,  to  dole  out 
food  to  the  heads  of  the  households  under  their  ju- 
risdiction at  the  very  shortest  intervals,  and  some- 
times day  by  day.  A  periodical  distribution  is  also 
made  to  the  Sclavonian  villagers  of  the  Austrian  and 
Turkish  provinces  by  the  elders  of  their  body,  but 
then  it  is  a  distribution  once  fur  all  of  the  total  pro- 
duce of  the  year.    In  the  Russian  villages,  however, 


chap.  viii.      VARIETIES  OF  THE  COMMUNITY. 


261 


the  substance  of  the  property  ceases  to  be  looked 
upon  as  indivisible,  and  separate  proprietary  claims 
are  allowed  freely  to  grow  up,  but  then  the  progress 
of  separation  is  peremptorily  arrested  after  it  has 
continued  a  certain  time.  In  India,  not  only  is  there 
no  indivisibility  of  the  common  fund,  but  separate 
proprietorship  in  parts  of  it  may  be  indefinitely  pro- 
longed and  may  branch  out  into  any  number  of 
derivative  ownerships,  the  de  facto  partition  of  the 
stock  being,  however,  checked  by  inveterate  usage, 
and  by  the  rule  against  the  admission  of  strangers 
without  the  consent  of  the  brotherhood.  It  is  not 
of  course  intended  to  insist  that  these  different  forms 
of  the  Village  Community  represent  distinct  stages 
in  a  process  of  transmutation  which  has  been  every- 
where accomplished  in  the  same  manner.  But, 
though  the  evidence  does  not  warrant  our  going  so 
far  as  this,  it  renders  less  presumptuous  the  conjec- 
ture that  private  property,  in  the  shape  in  which  we 
know  it,  was  chiefly  formed  by  the  gradual  disen- 
tanglement of  the  separate  rights  of  individuals  from 
the  blended  rights  of  a  community.  Our  studies  iu 
the  Law  of  Persons  seemed  to  show  us  the  Family 
expanding  into  the  Agnatic  group  of  kinsmen,  then 
the  Agnatic  group  dissolving  iuto  separate  house- 
holds; Lastly,  the  household  supplanted  by  the  indi- 
vidual ;  and  it  is  now  suggested  that  each  step  in  the 
change  corresponds  to  an  analogous  alteration  in  the 
u.it  ure  of  Ownership.  If  there  be  any  truth  in  the 
suggestion,  it  is  to  be  observed  that  it  materially 


2C2   PROBLEM  AS  TO  ORIGIN  OF  PROPERTY,   chap,  vin 


affects  the  problem  which  theorists  on  the  origin  of 
Property  have  generally  proposed  to  themselves. 
The  question — perhaps  an  insoluble  one — which 
they  have  mostly  agitated  is,  what  were  the  motives 
which  first  induced  men  to  respect  each  other's  pos- 
sessions ?  It  may  still  be  put,  without  much  hope 
of  finding  an  answer  to  it,  in  the  form  of  an  inquiry 
into  the  reasons  which  led  one  composite  group  to 
keep  aloof  from  the  domain  of  another.  But,  if  it 
be  true  that  far  the  most  important  passage  in  the 
history  of  Private  Property  is  its  gradual  separation 
from  the  co-ownership  of  kinsmen,  then  the  great 
point  of  inquiry  is  identical  with  that  which  lies  on 
the  threshold  of  all  historical  law — what  were  the 
motives  which  originally  prompted  men  to  hold  to- 
gether in  the  family  union  ?  To  such  a  question, 
Jurisprudence,  unassisted  by  other  sciences,  is  not 
competent  to  give  a  reply.  The  fact  can  only  be 
noted. 

The  undivided  state  of  property  in  ancient  socie- 
ties is  consistent  with  a  peculiar  sharpness  of  divis- 
ion, which  shows  itself  as  soon  as  any  single  share 
is  completely  separated  from  the  patrimony  of  the 
group.  This  phenomenon  springs,  doubtless,  from  the 
circumstance  that  the  property  is  supposed  to  become 
the  domain  of  a  new  group,  so  that  any  dealing  with 
it,  in  its  divided  state,  is  a  transaction  between  two 
highly  complex  bodies.  I  have  already  compared 
Ancient  Law  to  Modern  International  Law,  in  re- 
spect of  the  size  of  the  corporate  associations,  whose 


chap.  nn.   ANCIENT  DIFFICULTIES  OF  ALIENATION.  263 


rights  and  duties  it  settles.  As  the  contracts  and 
conveyances  known  to  aucientlaw  are  contracts  and 
conveyances  to  which  not  single  individuals,  but  or- 
ganised companies  of  men,  are  parties,  they  are  in 
the  highest  degree  ceremonious  ;  they  require  a  va- 
riety of  symbolical  acts  and  words  intended  to  im- 
press the  business  on  the  memory  of  all  who  take 
part  in  it ;  and  they  demand  the  presence  of  an  inor- 
dinate number  of  witnesses.  From  these  peculiari- 
ties, and  others  allied  to  them,  springs  the  univer- 
sally unmalleable  character  of  the  ancient  forms  of 
property.  Sometimes  the  patrimony  of  the  family 
is  absolutely  inalienable,  as  was  the  case  with  the 
Sclavonians,  and  still  oftener,  though  alienations  may 
not  be  entirely  illegitimate,  they  are  virtually  im- 
practicable,, as  among  most  of  the  Germauic  tribes, 
from  the  necessity  of  having  the  consent  of  a  large 
number  of  persons  to  the  transfer.  Where  these  im- 
pediments do  not  exist,  or  can  be  surmounted,  the  act 
of  conveyance  itself  is  generally  burdened  with  a  per- 
fect load  of  ceremony,  in  which  not  one  iota  can  be 
safely  neglected.  Ancient  law  uniformly  refuses  to 
dispense  with  a  single  gesture,  however  grotesque; 
with  a  single  syllable,  however  its  meaning  may  have 
been  forgotten  ;  with  a  single  witness,  however  super- 
fluous may  be  his  testimony.  The  entire  solemni- 
ties must  be  scrupulously  completed  by  persons  le- 
gally entitled  to  take  part  in  it,  or  else  the  convey- 
ance is  null,  and  the  seller  is  re-established  in  tho 


2C4   AXCIEXT  DIFFICULTIES  OF  AIJEXATION".    chap.  Tin. 


rights  of  which  he  had  vainly  attempted  to  direst 
himself. 

These  various  obstacles  to  the  free  circulation  of 
the  objects  of  use  and  enjoyment,  begin  of  course  tc 
make  themselves  felt  as  soon  as  society  has  acquired 
even  a  slight  degree  of  activity,  and  the  expedients 
by  which  advancing  communities  endeavour  to  over- 
come them  form  the  staple  of  the  history  of  Property. 
Of  such  expedients  there  is  one  which  takes  prece- 
dence of  the  rest  from  its  antiquity  and  universality. 
The  idea  seems  to  have  spontaneously  suggested  it- 
self to  a  great  number  of  early  societies,  to  classify 
property  into  kinds.  One  kind  or  sort  of  property 
is  placed  on  a  lower  footing  of  dignity  than  the 
others,  but  at  the  same  time  is  relieved  from  the 
fetters  which  antiquity  has  imposed  on  them.  Sub- 
sequently, the  superior  convenience  of  the  rules  gov- 
erning the  transfer  and  descent  of  the  lower  order 
of  property  becomes  generally  recognised,  and  by  a 
gradual  course  of  innovation  the  plasticity  of  the  less 
dignified  class  of  valuable  objects  is  communicated  to 
the  classes  which  stand  conventionally  higher.  The 
history  of  Roman  Property  Law  is  the  history  of 
the  assimilation  of  Res  Mancipi  to  Res  Nec  Mancipi. 
The  history  of  Property  on  the  European  Continent 
is  the  history  of  the  subversion  of  the  feudalised 
law  of  land  by  the  Romanised  law  of  moveables ; 
and  though  the  history  of  ownership  in  England  is 
not  nearly  completed,  it  is  visibly  the  law  of  per 


cn\p.  tiii. 


KINDS  OF  PROPERTY. 


235 


sonalty  which  threatens  to  absorb  and  annihilate 
the  law  of  realty. 

The  only  natural  classification  of  the  objects  of 
enjoyment,  the  only  classification  which  corresponds 
with  an  essential  difference  in  the  subject  matter,  is 
that  which  divides  them  into  Moveables  and  Immove- 
ables. Familiar  as  is  this  classification  to  jurispru 
dence,  it  was  very  slowly  developed  by  Roman  law, 
from  which  we  inherit  it,  and  was  only  finally  adopt- 
ed by  it  in  its  latest  stage.  The  classifications  of 
Ancient  Law  have  sometimes  a  superficial  resem- 
blance to  this.  They  occasionally  divide  property 
into  categories,  and  place  immoveables  in  one  of 
them ;  but  then  it  is  found  that  they  either  class 
along  with  immoveables  a  number  of  objects  which 
have  no  sort  of  relation  with  them,  or  else  divorce 
them  from  various  rights  to  which  they  have  a  close 
affinity.  Thus,  the  Ties  Mancipi  of  Roman  Law  in- 
cluded not  only  land  but  slaves,  horses,  and  oxen. 
Scottish  law  ranks  with  land  a  certain  class  of  secu- 
rities, and  Hindoo  law  associates  it  with  slaves.  Eng- 
lish law,  on  the  other  hand,  parte  leases  of  land  for 
years  from  other  interests  in  the  soil,  and  joins  them 
to  personalty  under  the  name  of  chattels  real.  More- 
over, the  classifications  of  Ancient  Law  are  classifi- 
cations implying  superiority  and  inferiority  ;  while 
the  distinction  between  moveables  and  immoveables, 
bo  long  at  least  as  it  was  confined  to  Roman  juris- 
prudence, carried  with  it  no  suggestion  whatever  of 
a  difference!  in  dignity.    The  Res  Mancipi,  however, 


266 


ANCIENT  KINDS  OF  PEOPERTY.      ohap.  via 


did  certainly  at  first  enjoy  a  precedence  over  the  Res 
Nec  Mancipi,  as  did  heritable  property  in  Scotland, 
and  realty  in  England,  over  the  personalty  to  which 
they  were  opposed.  The  lawyers  of  all  systems  have 
spared  no  pains  in  striving  to  refer  these  classifica- 
tions to  some  intelligible  principle  ;  but  the  reasons 
of  the  severance  must  ever  be  vainly  sought  for  in 
the  philosophy  of  law  ;  they  belong  not  to  its  philos- 
ophy, but  to  its  history.  The  explanation  which  ap- 
pears to  cover  the  greatest  number  of  instances  is 
that  the  objects  of  enjoyment  honoured  above  the 
rest  were  forms  of  property  known  first  and  earliest 
to  each  particular  community,  and  dignified  there- 
fore emphatically  with  the  designation  of  Property, 
On  the  other  hand,  the  articles  not  enumerated 
among  the  favoured  objects  seem  to  have  been  placed 
on  a  lower  standing,  because  the  knowledge  of  their 
value  was  posterior  to  the  epoch  at  which  the  cata- 
logue of  superior,  property  was  settled.  They  were 
at  first  unknown,  rare,  limited  in  their  uses,  or  else 
regarded  as  mere  appendages  to  the  privileged  ob- 
jects. Thus,  though  the  Roman  Res  Mancipi  includ- 
ed a  number  of  moveable  articles  of  great  value, 
still  the  most  costly  jewels  were  never  allowed  to 
take  rank  as  Res  Mancipi,  because  they  were  un- 
known to  the  early  Romans.  In  the  same  way  chat- 
tels real  in  England  are  said  to  have  been  degraded 
to  the  footing  of  personalty,  from  the  infrequency 
and  valuelessuess  of  such  estates  under  the  feudal 
laud-law.  But  the  grand  point  of  interest  is,  the  con 


ciiap.  tul    DEGRADATION  OF  INFERIOR  PROPERTY.  267 


tinned  degradation  of  these  commodities  when  their 
importance  had  increased  and  their  number  had 
multiplied.  Why  were  they  not  successively  includ- 
ed among  the  favoured  objects  of  enjoyment  ?  One 
reason  is  found  in  the  stubbornness  with  which  An- 
cient Law  adheres  to  its  classifications.   It  is  a  char- 
acteristic both  of  uneducated  minds  and  of  early  so- 
cieties, that  they  are  little  able  to  conceive  a  gen- 
eral rule  apart  from  the  particular  applications  of  it 
with  which  they  are  practically  familiar.  They  can- 
not dissociate  a  general  term  or  maxim  from  the  spe- 
cial examples  which  meet  them  in  daily  experience; 
and  in  this  way  the  designation  covering  the  best- 
known  forms  of  property  is  denied  to  articles  which 
exactly  resemble  them  in  being  objects  of  enjoyment 
and  subjects  of  right.  But  to  these  influences,  which 
exert  peculiar  force  in  a  subject-matter  so  stable  as 
that  of  law,  are  afterwards  added  others  more  con- 
Bistent  with  progress  in  enlightenment  and  in  the 
conceptions  of  general  expediency.  Courts  and  law- 
yer- become  at  last  alive  to  the  inconvenience  of  the 
embarrassing  formalities  required  for  the  transfer,  re- 
covery, or  devolution  of  the  favoured  commodities, 
and  grow  unwilling  to  fetter  the  newer  descriptions 
of  property  witli  the  technical  trammels  which 
characterised  the  infancy  of  law   Hence  arises  a  dis- 
position to  keep  these  last  on  a  lower  grade  in  the 
arrangements  of  Jurisprudence,  and  to  permit  their 
transfer  by  simpler  processes  than  those  which,  in 
arcbai-  conveyances,  serve  as  stumbling-blocks  to 


263 


ANCIENT  TITLES  IMPERFECT.         crur.  vm 


good  faith  and  stepping-stones  to  fraud.  We  are. 
perhaps  in  some  danger  of  underrating  the  inconve- 
niences of  the  ancient  modes  of  transfer.  Our  instru- 
ments of  conveyance  are  written,  so  that  their  lan- 
gunge,  well  pondered  by  the  professional  drafts 
man,  is  rarely  defective  in  accuracy.  But  an  ancient 
conveyance  was  not  written,  but  acted.  Gestures  and 
words  took  the  place  of  written  technical  phraseo- 
logy, and  any  formula  mispronounced,  or  symbolical 
act  omitted,  would  have  vitiated  the  proceeding  as  fa 
tally  as  a  material  mistake  in  stating  the  uses  or  set 
ting  out  the  remainders  would,  two  hundred  years 
ago,  have  vitiated  an  English  deed.  Indeed,  the  mis- 
chiefs of  the  archaic  ceremonial  are  even  thus  only 
half  stated.  So  long  as  elaborate  conveyances,  writ- 
ten or  acted,  are  required  for  the  alienation  of  land 
alone,  the  chances  of  mistake  are  not  considerable  in 
the  transfer  of  a  description  of  property  which  is 
seldom  got  rid  of  with  much  precipitation.  But  the 
higher  class  of  property  in  the  ancient  world  com- 
prised not  oidy  land  but  several  of  the  commonest 
and  several  of  the  most  valuable  moveables.  When 
once  the  wheels  of  society  had  begun  to  move  quick- 
ly, there  must  have  been  immense  inconvenience  in 
demanding  a  highly  intricate  form  of  transfer  for  a 
horse  or  an  ox,  or  for  the  most  costly  chattel  of  the 
old  world — the  Slave.  Such  commodities  must  have 
been  constantly  and  even  ordinarily  conveyed  with 
incomplete  forms,  and  held,  therefore,  under  imper 
feet  titles. 


ohap.  ra        DEFINITION  OF  RES  MANCIPI. 


2S£ 


The  Res  Mancipi  of  old  Roman  law  were,  land, 
— in  historical  times,  land  on  Italian  soil, — slaves 
and  beasts  of  burden,  such  as  horses  and  oxen.  It 
is  impossible  to  doubt  that  the  objects  which  maks 
up  the  class  are  the  instruments  of  agricultural  la- 
bour, the  commodities  of  first  consequence  to  a 
primitive  people.  Such  commodities  were  at  first, 
I  imagine,  called  emphatically  Things  or  Property, 
and  the  mode  of  conveyance  by  which  they  were 
transferred  was  called  a  Maucipiumor  Mancipation  ; 
but  it  was  not  probably  till  much  later  that  they  re- 
ceived the  distinctive  appellation  of  Res  Mancipi, 
"  Things  which  require  a  Mancipation."  By  their 
side  there  may  have  existed  or  grown  up  a  class  of 
objects,  for  which  it  was  not  worth  while  to  insist 
upon  the  full  ceremony  of  Mancipation.  It  would 
be  enough  if,  in  transferring  these  last  from  owner 
to  owner,  a  part  only  of  the  ordinary  formalities 
were  proceeded  with,  namely,  that  actual  delivery, 
physical  transfer,  or  tradition,  which  is  the  most  ob- 
vious index  of  a  change  of  proprietorship.  Such 
commodities  were  the  lies  Nec  Mancipi  of  the  an- 
cient jurisprudence,  "things  which  did  not  require 
a  Mancipation,"  little  prized  probably  at  first,  and 
not  often  passed  from  one  group  of  proprietors  to 
another.  While,  however,  the  list  of  the  Ues  Man- 
cipi was  irrevocably  closed,  that  of  the  Res  Nec 
Mancipi  admitted  of  indefinite  expansion  ;  and  hence 
every  fresh  conquest  of  man  over  material  nature 
udded  an  item  to  the  Res  Nec  Mancipi,  or  effected 


270 


EES  NEC  MANCIPI. 


chap,  via 


an  improvement  in  those  already  recognised.  In 
sensibly,  therefore,  they  mounted  to  an  equality 
with  the  Res  Mancipi,  and  the  impression  of  an 
intrinsic  inferiority  being  thus  dissipated,  men  began 
to  observe  the  manifold  advantages  of  the  simple 
formality  which  accompanied  their  transfer  over  the 
more  intricate  and  more  venerable  ceremonial.  Two 
of  the  agents  of  legal  amelioration,  Fictions  and 
Equity,  were  assiduously  employed  by  the  Roman 
lawyers  to  give  the  practical  effects  of  a  Mancipa- 
tion to  a  Tradition ;  and,  though  Roman  legislators 
long  shrank  from  enacting  that  the  right  of  property 
in  a  Res  Mancipi  should  be  immediately  transferred 
by  bare  delivery  of  the  article,  yet  even  this  step 
was  at  last  ventured  upon  by  Justinian,  in  whose 
jurisprudence  the  difference  between  Res  Mancipi 
and  Res  Nee  Mancipi  disappears,  and  Tradition  or 
Delivery  becomes  the  one  great  conveyance  known 
to  the  law.  The  marked  preference  which  the  Ro- 
man  lawyers  very  early  gave  to  Tradition  caused 
them  to  assign  it  a  place  in  their  theory  which  lias 
helped  to  blind  their  modern  disciples  to  its  true 
history.  It  was  classed  among  the  "  natural "  modes 
of  acquisition,  both  because  it  was  generally  prac- 
tised among  the  Italian  tribes,  and  because  it  was  a 
process  which  attained  its  object  by  the  simplest 
mechanism.  If  the  expressions  of  the  jurisconsults 
be  pressed,  they  undoubtedly  imply  that  Tradition, 
vhich  belongs  to  the  Law  Natural,  is  more  ancient 
than  Mancipation,  which  is  an  institution  of  Civil 


cnxp.  tiii. 


TRADITION. 


271 


Society;  and  this, I  need  not  say,  is  the  exact  reverse 
of  the  truth. 

The  distinction  between  Res  Mancipi  and  Res 
Nee  Mancipi  is  the  type  of  a  class  of  distinctions  to 
which  civilisation  is  much  indebted,  distinctions 
which  run  through  the  whole  mass  of  commodities, 
placing  a  few  of  them  in  a  class  by  themselves,  and 
relegating  the  others  to  a  lower  category.  The  in- 
ferior  kinds  of  property  are  first,  from  disdain  and 
disregard,  released  from  the  perplexed  ceremonies 
in  which  primitive  law  delights,  and  then  afterwards, 
in  another  state  of  intellectual  progress,  the  simple 
methods  of  transfer  and  recovery  which  have  been 
allowed  to  come  into  use  serve  as  a  model  which 
condemns  by  its  convenience  and  simplicity  the 
cumbrous  solemnities  inherited  from  ancient  days. 
But,  in  some  societies,  the  trammels  in  which  Prop- 
erty i-  tied  up  are  much  too  complicated  and  strin- 
gent to  be  relaxed  in  so  easy  a  manner.  Whenever 
male  children  have  been  born  to  a  Hindoo,  the  law 
of  India,  as  I  have  stated,  gives  them  all  an  interest 
in  his  property,  and  makes  their  consent  a  necessary 
condition  of  its  alienation.  In  the  same  spirit,  the 
general  usage  of  the  old  Germanic  peoples — it  is 
remarkable  that  the  Anglo-Saxon  customs  seem  to 
have  been  an  exception — forbade  alienations  without 
the  oonsenl  of  the  male  children;  and  the  primitive 
law  of  the  Sclavonians  even  prohibited  them  alto 
gel  her.  It  is  evident  that  such  impediments  as  these 
cannot  be  overcome  by  a  distinction  between  kinds 


OTHER  ANCIENT  CLASSIFICATIONS.     chap,  vm 


of  property,  inasmuch  as  the  difficulty  extends  to 
commodities  of  all  sorts;  and  accordingly,  Ancient 
Law,  when  once  launched  on  a  course  of  improve- 
ment, encounters  them  with  a  distinction  of  another 
character,  a  distinction  classifying  property,  not  ac- 
cording to  its  nature  hut  according  to  its  origin.  In 
India,  where  there  are  traces  of  both  systems  of 
classification,  the  one  which  we  are  considering  is 
exemplified  in  the  difference  which  Hindoo  law 
establishes  between  Inheritances  and  Acquisitions. 
The  inherited  property  of  the  father  is  shared  by 
the  children  as  soon  as  they  are  born  ;  but  according 
to  the  custom  of  most  provinces,  the  acquisitions 
made  by  him  during  his  lifetime  arc  wholly  his  own, 
and  can  be  transferred  by  him  at  pleasure.  A  simi- 
lar distinction  was  not  unknown  to  Roman  law,  in 
which  the  earliest  innovation  on  the  Parental  Powers 
took  the  form  of  a  permission  given  to  the  son  to 
keep  for  himself  whatever  he  might  have  acquired 
in  military  service.  But  the  most  extensive  use 
ever  made  of  this  mode  of  classification  appears  to 
have  been  among  the  Germans.  I  have  repeatedly 
stated  that  the  cdlod,  though  not  inalienable,  was 
commonly  transferable  with  the  greatest  difficulty ; 
and  moreover,  it  descended  exclusively  to  the  agnatic 
kindred.  Hence  an  extraordinary  variety  of  dis- 
tinctions came  to  be  recognised,  all  intended  to  di- 
minish the  inconveniences  inseparable  from  allodial 
property.  The  v:elirgcld,  for  example,  or  composi- 
tion for  the  homicide  of  a  relative,  which  occupies 


chap.  vm.      INHERITANCES  AND  ACQUISITIONS.  273 

so  large  a  space  in  German  jurisprudence,  formed  no 
part  of  tlie  family  domain,  and  descended  according 
to  rules  of  succession  altogether  different.  Simi- 
larly, the  reipus,  or  fine  leviable  on  the  re-marriage 
of  a  widow,  did  not  enter  into  the  alloc!  of  the  per- 
son to  whom  it  was  paid,  and  followed  a  line  of 
devolution  in  which  the  privileges  of  the  agnates 
were  neglected.  The  law,  too,  as  among  the  Hin- 
doos, distinguished  the  Acquisitions  of  the  chief  of 
the  household  from  his  Inherited  property,  and  per- 
mitted him  to  deal  with  them  under  much  more 
liberal  conditions.  Classifications  of  the  other  sort 
were  also  admitted,  and  the  familiar  distinction 
drawn  between  land  and  moveables ;  but  moveable 
property  was  divided  into  several  subordinate  cate- 
gories, to  each  of  which  different  rules  applied.  This 
exuberance  of  classification,  which  may  strike  us  as 
strange  in  so  rude  a  people  as  the  German  conquer- 
ors of  the  Empire,  is  doubtless  to  be  explained  by 
the  presence  in  their  systems  of  a  considerable  ele- 
ment of  Roman  law,  absorbed  by  them  during  their 
long  sojourn  on  the  confines  of  the  Roman  dominion. 
It  is  not  difficult  to  trace  a  great  number  of  the  rules 
governing  the  transfer  and  devolution  of  the  com- 
modities which  lay  outside  the  allod,  to  their  source 
in  Roman  jurisprudence,  from  which  they  were  prob- 
ably borrowed  at  widely  distant  epochs,  and  in  frag* 
mentary  importations.  How  far  the  obstacles  to 
the  free  circulation  of  property  were  surmounted  by 
inch  contrivances,  we  have  not  the  means  even  of 
18 


271 


LAND  AND  GOODS. 


chap,  vm 


conjecturing,  for  the  distinction-;  adverted  to  have 
no  modern  history.  As  I  before  explained,  the  allo- 
dial form  :>f  property  was  entirely  lost  in  the  feudal, 
and  when  the  consolidation  of  feudalism  was  once 
completed,  there  was  practically  but  one  distinction 
left  standing  of  all  those  which  had  been  known  to 
the  western  world — the  distinction  between  land 

.  and  goods,  immoveables  and  moveables.  Externally 
this  distinction  was  the  same  with  that  which  Roman 
law  had  finally  accepted,  but  the  law  of  the  middle 
ages  differed  from  that  of  Rome  in  distinctly  con- 
sidering immoveable  property  to  be  more  dignified 
than  moveable.  Yet  this  one  sample  is  enough  to 
show  the  importance  of  the  class  of  expedients  to 
which  it  belongs.  In  all  the  countries  governed  by 
systems  based  on  the  French  codes,  that  is,  through 
much  the  greatest  part  of  the  Continent  of  Europe, 
the  law  of  moveables,  which  was  always  Roman  law, 
has  superseded  and  annulled  the  feudal  law  of  land 
England  is  the  only  country  of  importance  in  which 
this  transmutation,  though  it  has  gone  some  way,  is 
not  nearly  accomplished.  Our  own,  too,  it  may  be 
added,  is  the  only  considerable  European  country  in 
which  the  separation  of  moveables  from  immovea- 
bles has  been  somewhat  disturbed  by  the  same  in- 
fluences which  caused  the  ancient  classifications  to 
depart  from  the  only  one  which  is  countenanced  by 
nature.    In  the  main,  .the  English  distinction  has 

•  been  between  land  and  goods ;  but  a  certain  class  of 
goods  have  gone  as  heir-looms  with  the  land,  and  a 


cnAr.  Tin. 


rREScrirnox. 


275 


certain  description  of  interests  in  land  have  from 
historical  causes  been  ranked  with  personalty.  This 
is  not  the  only  instance  in  which  English  jurispru 
dence,  standing  apart  from  the  main  current  of  legal 
modification,  has  reproduced  phenomena  of  archaic 
law. 

I  proceed  to  notice  one  or  two  more  contrivances 
by  which  the  ancient  trammels  of  proprietary  right 
were  more  or  less  successfully  relaxed,  premising 
that  the  scheme  of  this  treatise  only  permits  me  to 
mention  those  which  are  of  great  antiquity.  On 
one  of  them  in  particular  it  is  necessary  to  dwell  for 
a  moment  or  two,  because  persons  unacquainted  with 
the  early  history  of  law  will  not  be  easily  persuaded 
that  a  principle,  of  which  modern  jurisprudence  has 
very  slowly  and  with  the  greatest  difficulty  obtained 
the  recognition,  was  really  familiar  to  the  very  in- 
fancy of  legal  science.  There  is  no  principle  in  all 
law  which  the  moderns,  in  spite  of  its  beneficial 
character,  have  been  so  loath  to  adopt  and  to  carry 
to  its  legitimate  consequences  as  that  which  was 
known  to  the  Romans  as  Usucapion,  and  which  has 
descended  1"  modern  jurisprudence  under  the  name 
of  Prescription.  It  was  a  positive  rule  of  the  oldest 
Roman  law,  a  rule  older  than  the  Twelve  Tables, 
that  commodities  which  had  been  uninterruptedly 
possessed  for  a  certain  period  became  the  propertv 
of  the  possessor.  The  period  of  possession  was  ex- 
ceedingly short — one  or  two  years,  according  to  the 
nature  of  the  commodities — and  in  historical  times 


276  INFLUENCE  OF  CANON  LAW.        chap.  vm. 

Usucapion  was  only  allowed  to  operate  when  posses- 
sion had  commenced  in  a  particular  way;  but  I 
think  it  likely  that  at  a  less  advanced  epoch  posses- 
sion was  converted  iuto  ownership  under  conditions 
even  less  severe  than  we  read  of  in  our  authorities, 
tis  I  have  said  before,  I  am  far  from  asserting  that 
tli3  respect  of  men  for  de  facto  possession  is  a  phe- 
nomenon which  jurisprudence  can  account  for  by 
itself,  but  it  is  very  necessary  to  remark  that  primi- 
tive societies,  in  adopting  the  principle  of  Usuca- 
pion, were  not  beset  with  any  of  the  speculative 
doubts  and  hesitations  which  have  impeded  its  re- 
ception among  the  moderns.  Prescriptions  were 
viewed  by  the  modern  lawyers,  first  with  repug- 
nance, afterwards  with  reluctant  approval.  In  sev- 
eral countries,  including  our  own,  legislation  long 
declined  to  advance  beyond  the  rude  device  of 
barring  all  actions  based  on  a  wrong  which  had 
been  suffered  earlier  than  a  fixed  point  of  time  in 
the  past,  generally  the  first  year  of  some  preceding 
reign  ;  nor  was  it  till  the  middle  ages  had  finally 
closed,  and  James  the  First  had  ascended  the  throne 
of  England,  that  we  obtained  a  true  statute  of  limi- 
tation of  a  very  imperfect  kind.  This  tardiness  in 
copying  one  of  the  most  famous  chapters  of  Roman 
law,  which  was  no  doubt  constantly  read  by  the 
majority  of  European  lawyers,  the  modern  world 
owes  to  the  influence  of  the  Canon  Law.  The 
ecclesiastical  customs  out  of  which  the  Canon  Law 
grew,  c(  ncerned  as  they  were  with  sacred  or  quasi- 


chap.  viii.         INFLUENCE  OF  CAXOX  LAW. 


277 


sacred  interests,  very  naturally  regarded  the  privi- 
leges which  they  conferred  as  incapable  of  being 
lost  through  disuse  however  prolonged  ;  and  in  ac- 
cordance with  this  view,  the  spiritual  jurisprudence, 
when  afterwards  consolidated,  was  distinguished  by 
a  marked  leaning  against  Prescriptions.  It  was  the 
fate  of  the  Canon  Law,  when  held  up  by  the  clerical 
lawyers  as  a  pattern  to  secular  legislation,  to  have  a 
peculiar  influence  on  first  principles.  It  gave  to  the 
bodies  of  custom  which  were  formed  throughout 
Europe  far  fewer  express  rules  than  did  the  Roman 
law,  but  then  it  seems  to  have  commuuicated  a  bias 
to  professional  opinion  on  a  surprising  number  of 
fundamental  points,  and  the  tendencies  thus  pro- 
duced progressively  gained  strength  as  each  system 
was  developed.  One  of  the  dispositions  it  produced 
was  a  disrelish  for  Prescriptions  ;  but  I  do  not  know 
that  this  prejudice  would  have  operated  as  power- 
fully as  it  has  done,  if  it  had  not  fallen  in  with  the 
doctrine  of  the  scholastic  jurists  of  the  realist  sect, 
who  taught  that,  whatever  turn  actual  legislation 
might  take,  a  right,  how  long  soever  neglected,  was 
in  point  of  fact  indestructible.  The  remains  of  this 
stale  of  feeling  still  exist.  "Wherever  the  philoso- 
phy of  law  is  earnestly  discussed,  questions  respect- 
ing the  speculative  basis  of  Prescription  are  always 
hotly  disputed  ;  and  it  is  still  a  point  of  the  greatest 
interest  in  France  and  Germany,  whether  a  person, 
who  has  been  out  of  possession  for  a  series  of  years 
is  deprived  of  his  ownership  as  a  penalty  for  his 


278 


ROMAN  USUCAPION. 


CHAP.  V1IL 


neglect,  or  loses  it  through  the  summary  interposi- 
tion of  the  law  in  its  desire  to  have  a  finis  litium. 
But  no  such  scruples  troubled  the  mind  of  early 
Roman  society.  Their  ancient  usages  directly  took 
away  the  ownership  of  everybody  who  had  been 
out  of  possession,  under  certain  circumstances,  during 
one  or  two  years.  What  was  the  exact  tenor  of  the 
rule  of  Usucapion  in  its  earliest  shape,  it  is  not  easy 
to  say ;  but,  taken  with  the  limitations  which  we 
find  attending  it  in  the  books,  it  was  a  most  useful 
security  against  the  mischiefs  of  a  too  cumbrous 
system  of  conveyance.  In  order  to  have  the  benefit 
'  of  Usucapion,  it  was  necessary  that  the  adverse  pos- 
session should  have  begun  in  good  faith,  that  is, 
with  belief  on  the  part  of  the  possessor  that  he  was 
lawfully  acquiring  the  property,  and  it  was  further 
required  that  the  commodity  should  have  been 
transferred  to  him  by  some  mode  of  alienation 
which,  however  unequal  to  conferring  a  complete 
title  in  the  particular  case,  was  at  least  recognised 
by  the  law.  In  the  case  therefore  of  a  Mancipation, 
however  slovenly  the  performance  might  have  been, 
yet  if  it  had  been  carried  so  far  as  to  involve  a  Tra« 
dition  or  Delivery,  the  vice  of  the  title  would  be 
cured  by  Usucapion  in  two  years  at  most.  I  know 
nothing  in  the  practice  of  the  Romans  which  testifies 
so  strongly  to  their  legal  genius  as  the  use  which 
they  made  of  the  Usucapion.  The  difficulties  which 
beset  them  were  nearly  the  same  with  those  which 
embarrassed  and  still  embarrass  the  lawyers  of 


OHAP.  YUI. 


COLLUSIVE  RECOVERIES. 


279 


England.  Owing  to  the  complexity  of  their  system, 
which  as  yet  they  had  neither  the  courage  nor  the 
power  to  reconstruct,  actual  right  was  constantly 
getting  divorced  from  technical  right,  the  equitable 
ownership  from  the  legal.  But  Usucapion,  as  manip- 
ulated by  the  jurisconsults,  supplied  a  self-acting 
machinery,  by  which  the  defects  of  titles  to  property 
were  always  in  course  of  being  cured,  and  by  which 
the  ownerships  that  were  temporarily  separated  were 
again  rapidly  cemented  together  with  the  briefest 
possible  delay.  Usucapion  did  not  lose  its  advanta- 
ges till  the  reforms  of  Justinian.  But  as  soon  as 
law  and  equity  had  been  completely  fused,  and  when 
Mancipation  ceased  to  be  the  Roman  conveyance, 
there  was  no  further  necessity  for  the  ancient  con- 
trivance, and  Usucapion,  with  its  periods  of  time 
considerably  lengthened,  became  the  Prescription 
which  has  at  length  been  adopted  by  nearly  all 
systems  of  modern  law. 

I  pass  by  with  brief  mention  another  expedient 
having  the  same  object  with  the  last,  which,  though 
it  did  not  immediately  make  its  appearance  in  Eng- 
lish legal  history,  was  of  immemorial  antiquity  in 
Roman  law ;  such  indeed  is  its  apparent  age  that 
Borne  German  civilians,  not  sufficiently  aware  of  the 
light  thrown  on  the  subject  by  the  analogies  of 
English  law,  have  thought  it  even  older  than  the 
Mancipation.  I  speak  of  the  Cessio  in  Jure,  a  col- 
lusive recovery,  in  a  Court  of  Law,  of  property 
Bought  to  be  conveyed.    The  plaintiff  claimed  the 


280 


COLLUSIVE  RECOVERIES. 


OIUP.  VI  n 


subject  of  this  proceeding  with  the  ordinary  forma 
of  a  litigation ;  the  defendant  made  default ;  and 
the  commodity  was  of  course  adjudged  to  the  plain- 
tiff. I  need  scarcely  remind  the  English  lawyer  that 
this  expedient  suggested  itself  to  our  forefathers, 
and  produced  those  famous  Fines  and  Recoveries 
which  did  so  much  to  undo  the  harshest  trammels 
of  the  feudal  land-law.  The  Roman  and  English 
contrivances  have  very  much  in  common,  and  illus- 
trate each  other  most  instructively,  but  there  is  this 
difference  between  them,  that  the  object  of  the 
English  lawyers  was  to  remove  complications  already 
introduced  into  the  title,  while  the  Roman  juriscon- 
sults sought  to  prevent  them  by  substituting  a  mode 
of  transfer  necessarily  unimpeachable  for  one  which 
too  often  miscarried.  The  device  is  in  fact  one 
which  suggests  itself  as  soon  as  Courts  of  Law  are 
in  steady  operation,  but  are  nevertheless  still  under 
the  empire  of  primitive  notions.  In  an  advanced 
state  of  legal  opinion,  tribunals  regard  collusive 
litigation  as  an  abuse  of  their  procedure  ;  but  there 
has  always  been  a  time  when,  if  their  forms  were 
scrupulously  complied  with,  they  never  dreamed  of 
looking  further. 

The  influence  of  Courts  of  Law  and  of  their 
procedure  upon  property  has  been  most  extensive, 
but  the  subject  is  too  large  for  the  dimensions  of 
this  treatise,  and  would  carry  us  further  down  the 
course  of  legal  history  than  is  consistent  with  its 
Scheme.    It  is  desirable,  however,  to  mention,  that 


orap.  tiii.         PROPERTY  AND  POSSESSION. 


281 


to  tliis  influence  we  must  attribute  the  importance 
of  the  distinction  between  Property  and  Possession 
— not,  indeed,  the  distinction  itself,  which  (in  the 
language  of  an  eminent  English  civilian)  is  the  same 
thing  as  the  distinction  between  the  legal  right  to 
act  upon  a  thing  and  the  physical  power  to  do  so — 
but  the  extraordinary  importance  which  the  distinc- 
tion has  obtained  in  the  philosophy  of  the  law.  Few 
educated  persons  are  so  little  versed  in  legal  litera- 
ture as  not  to  have  heard  that  the  language  of  the 
"Roman  jurisconsults  on  the  subject  of  Possession 
long  occasioned  the  greatest  possible  perplexity,  and 
that  the  genius  of  Savigny  is  supposed  to  have 
chiefly  proved  itself  by  the  solution  which  he  dis- 
covered for  the  enigma.  Possession,  in  fact,  when 
employed  by  the  Roman  lawyers,  appears  to  have 
contracted  a  shade  of  meaning  not  easily  accounted 
for.  The  word,  as  appears  from  its  etymology,  must 
have  originally  denoted  physical  contact  or  physical 
contact  resumeable  at  pleasure  ;  but  as  actually  used, 
without  any  qualifying  epithet,  it  signifies  not  simply 
physical  detention,  but  physical  detention  coupled 
nth  the  intention  to  hold  the  thing  detained  as 
one's  own.  Savigny,  following  Niehuhr,  perceived 
that  for  this  anomaly  there  could  only  be  a  histori- 
cal origin.  He  pointed  out  that  the  Patrician 
burghers  of  Rome,  who  had  become  tenants  of  the 
greatest  part  of  the  public  domain  at  nominal  rents, 
were,  in  the  view  of  the  old  Roman  law,  mere  pos- 
sessors, but  then  tin  y  were  possessors  intending  to 


282  PROPERTY  AND  POSSESSION.         chap.  vin. 

keep  their  land  against  all  comers.  They,  iu  truth, 
put  forward  a  claim  almost  identical  with  that  which 
has  recently  been  advanced  in  England  by  the  les- 
sees of  Church  lands.  Admitting  that  iu  theory 
they  were  the  tenants-at-will  of  the  state,  they  con* 
tended  that  time  and  undisturbed  enjoyment  had 
ripened  their  holding  into  a  species  of  ownership, 
and  that  it  would  be  unjust  to  eject  them  for  the 
purpose  of  redistributing  the  domain.  The  asso- 
ciation of  this  claim  with  the  Patrician  tenancies, 
permanently  influenced  the  sense  of  "  possession.'" 
Meanwhile  the  only  legal  remedies  of  which  the 
tenants  could  avail  themselves,  if  ejected  or  threat- 
ened with  disturbance,  were  the  Possessory  Inter- 
dicts, summary  processes  of  Roman  law  which  were 
either  expressly  devised  by  the  Praetor  for  their 
protection,  or  else,  according  to  another  theory,  had 
in  older  times  been  employed  for  the  provisional 
maintenance  of  possessions  pending  the  settlement 
of  questions  of  legal  right.  It  came,  therefore,  to 
be  understood  that  everybody  who  possessed  prop- 
erty  as  his  own  had  the  power  of  demanding  the 
Interdicts,  and,  by  a  system  of  highly  artificial 
pleading,  the  Interdictal  process  was  moulded  into 
a  shape  fitted  for  the  trial  of  conflicting  claims  to  a 
disputed  possession.  Then  commenced  a  movement 
which,  as  Mr.  John  Austin  pointed  out,  exactly  re- 
produced itself  in  English  law.  Proprietors,  doming 
began  to  prefer  the  simpler  forms  or  speedier  course 
of  the  Interdict  to  tne  lagging  and  intricate  formal- 


CHAP,  m 


LAW  AND  EQUITY. 


283 


ities  of  the  Real  Action,  and  for  the  purpose  of 
availing  themselves  of  the  possessory  remedy  fell 
back  upon  the  possession  which  was  supposed  to  be 
involved  in  their  proprietorship,  i  The  liberty  con 
ceded  to  persons  who  were  not  true  Possessors,  but 
Owners,  to  vindicate  their  rights  by  possessory 
remedies,  though  it  may  have  been  at  first  a  boon, 
had  ultimately  the  effect  of  seriously  deteriorating 
both  English  and  Roman  jurisprudence.  The  Ro- 
man law  owes  to  it  those  subtleties  on  the  subject 
of  Possession  which  have  done  so  much  to  discredit 
it,  while  English  law,  after  the  actions  which  it  ap- 
propriated to  the  recovery  of  real  property  had 
fallen  iuto  the  most  hopeless  confusion,  got  rid  at 
last  of  the  whole  tangled  mass  by  a  heroic  remedy. 
No  one  can  doubt  that  the  virtual  abolition  of  the 
English  real  actions  which  took  place  nearly  thirty  1 
years  since  was  a  public  benefit,  but  still  persons 
sensitive  to  the  harmonies  of  jurisprudence  will 
lament  that,  instead  of  cleansing,  improving,  and 
simplifying  the  true  proprietary  actions,  we  sacri- 
ficed them  all  to  the  possessory  action  of  ejectment, 
thus  basing  our  whole  system  of  land  recovery  upon 
a  legal  fiction. 

Legal  tribunals  have  also  powerfully  assisted  to 
shape  and  modify  conceptions  of  proprietary  l  ight 
by  means  of  the  distinction  between  Law  and 
Equity,  which  always  makes  its  first  appearance  as 
a  distinction  between  jurisdictions.  Imputable  prop- 
erty in  England  is  simply  property  held  under  the 


284 


EQUITABLE  PROPERTY. 


CHAP.  Tin 


jurisdiction  of  the  Court  of  Chancery.  At  Rome 
the  Praetor's  Edict  introduced  its  novel  principles  in 
the  guise  of  a  promise  that  under  certain  circum 
stances  a  particular  action  or  a  particular  plea  would 
be  granted  ;  and,  accordingly,  the  property  in  honis, 
or  Equitable  Property,  of  Roman  law  was  property 
exclusively  protected  by  remedies  which  had  their 
source  in  the  Edict.  The  mechanism  by  which  equi- 
table rights  were  saved  from  being  overridden  by 
the' claims  of  the  legal  owner  was  somewhat  different 
in  the  two  systems.  With  us  their  independence  is 
secured  by  the  Injunction  of  the  Court  of  Chancery. 
Since  however  Law  and  Equity,  while  not  as  yet 
consolidated,  were  administered  under  the  Roman 
system  by  the  same  Court,  nothing  like  the  Injunc- 
tion was  required,  and  the  Magistrate  took  the  sim- 
pler course  of  refusing  to  grant  to  the  Civil  Law 
Owner  those  actions  and  pleas  by  which  alone  he 
could  obtain  the  property  that  belonged  in  equity 
to  another.  But  the  practical  operation  of  both 
systems  was  nearly  the  same.  Both,  by  means  of  a 
distinction  in  procedure,  were  able  to  preserve  new 
forms  of  property  in  a  sort  of  provisional  existence, 
until  the  time  should  come  when  they  were  recog- 
nised by  the  whole  law.  In  this  way,  the  Roman 
Praetor  gave  an  immediate  right  of  property  to  the 
person  who  had  acquired  a  Res  Mancipi  by  mere 
delivery,  without  waiting  for  the  ripening  of  Usuca- 
pion. Similarly  he  in  time  recognised  an  ownership 
in  the  Mortgagee,  who  had  at  first  been  a  mere 


©H,ip.  vin.      FEUDAL  VIEW  OF  OWNERSHIP. 


2£B 


"bailee"  or  depositary,  and  in  the  Emphyteuta,  or 
tenant  of  land  which  was  subject  to  a  fixed  per- 
petual rent.  Following  a  parallel  line  of  progress, 
the  English  Court  of  Chancery  created  a  special 
proprietorship  for  the  Mortgagor,  for  the  Cestui 
que  Trust,  for  the  Married  Woman  who  had  the 
advantage  of  a  particular  kind  of  settlement,  and 
for  the  Purchaser  who  had  not  yet  acquired  a  com- 
plete legal  ownership.  All  these  are  examples  in 
which  forms  of  proprietary  right,  distinctly  new, 
were  recognised  and  preserved.  But  indirectly 
Property  has  been  affected  in  a  thousand  ways  by 
equity,  both  in  England  and  at  Pome.  Into  what- 
ever corner  of  jurisprudence  its  authors  pushed  the 
powerful  instrument  in  their  command,  they  were 
sure  to  meet,  and  touch,  and  more  or  less  materially 
modify  the  law  of  property.  When  in  the  preceding 
pages  I  have  spoken  of  certain  ancient  legal  distinc- 
tions and  expedients  as  having  powerfully  affected 
the  history  of  ownership,  I  must  be  undei-stood  to 
mean  that  the  greatest  part  of  their  influence  has 
arisen  from  the  hints  and  suggestions  of  improve- 
ment infused  by  them  into  the  mental  atmosphere 
Avliich  was  breathed  by  the  fabricators  of  equitable 
systems. 

But  to  describe  the  influence  of  Equity  on  Own- 
ership would  be  to  write  its  history  down  to  our 
own  <la\>.  I  have  alluded  to  it  principally  because 
several  esteemed  contemporary  w  l  iters  have  thought 
that  in  the  Roman  severance  of  Equitable  from  Le- 


286 


ROMAN  AND  BARBARIAN  LAW.      chap.  vn«. 


gal  property  we  hare  the  clue  to  that  difference  iu 
the  conception  of  Ownership,  which  apparently  dis- 
tinguishes the  law  of  the  middle  ages  from  the  law 
of  the  Roman  Empire.  The  leading  characteristic 
of  the  feudal  conception  is  its  recognition  of  a  double 
proprietorship,  the  superior  ownership  of  the  lord 
of  the  fief  coexisting  with  the  inferior  property  or 
estate  of  the  tenant.  Now,  this  duplication  of  pro- 
prietary right  looks,  it  is  urged,  extremely  like  a 
generalised  form  of  the  Roman  distribution  of  rights 
over  property  into  Quiritarian  or  legal,  and  (to  use 
a  word  of  late  origin)  Bonitarian  or  equitable. 
Gaius  himself  observes  upon  the  splitting  of  domin- 
ion into  two  parts  as  a  singularity  of  Roman  law, 
and  expressly  contrasts  it  with  the  entire  or  allodial 
ownership  to  which  other  nations  were  accustomed. 
Justinian,  it  is  true,  reconsolidated  dominion  into 
one,  but  then  it  was  the  partially  reformed  system 
of  the  Western  Empire,  and  not  Justinian's  jurispru- 
dence, with  which  the  barbarians  were  in  contact 
during  so  many  centuries.  While  they  remained 
poised  on  the  edge  of  the  Empire,  it  may  well  be 
that  they  learned  this  distinction,  which  afterwards 
bore  remarkable  fruit.  In  favour  of  this  theory,  it 
must  at  all  events  be  admitted  that  the  element  of 
Roman  law  in  the  various  bodies  of  barbarian  cus- 
tom has  been  very  imperfectly  examined.  The  erro- 
neous or  insufficient  theories  which  hdve  served  to 
explain  Feudalism  resemble  each  other  in  their  ten- 
dency to  draw  off  attention  from  this  particular  in 


chap,  m      ROMAN  AND  BARBARIAN  LAW. 


287 


gredient  in  its  texture.  The  older  investigators, 
who  have  been  mostly  followed  in  this  country, 
attached  an  exclusive  importance  to  the  circum 
stances  of  the  turbulent  period  during  which  the 
Feudal  system  grew  to  maturity ;  and  in  later  timeg 
a  new  source  of  error  has  been  added  to  those  already 
existing,  in  that  pride  of  nationality  which  has  led 
German  writers  to  exaggerate  the  completeness  of 
the  social  fabric  which  their  forefathers  had  built  up 
before  their  appearance  in  the  Roman  world.  One 
or  two  English  inquirers  who  looked  in  the  right 
quarter  for  the  foundations  of  the  feudal  system, 
failed  nevertheless  to  conduct  their  investigations  to 
any  satisfactory  result,  either  from  searching  too  ex- 
clusively for  analogies  in  the  compilations  of  Justi- 
nian, or  from  confining  their  attention  to  the  com- 
pendia of  Roman  law  which  are  found  appended  to 
some  of  the  extant  barbarian  codes.  But,  if  Roman 
jurisprudence  had  any  influence  on  the  barbarous 
societies,  it  had  probably  produced  the  greatest  part 
of  its  effects  before  the  legislation  of  Justinian,  and 
before  the  preparation  of  these  compendia.  It  was 
not  the  reformed  and  purified  jurisprudence  of  Jus- 
tinian, but  the  undigested  system  which  prevailed  in 
the  Western  Empire,  and  which  the  Eastern  Corpus 
Juris  never  succeeded  in  displacing,  that  I  conceive 
to  have  clothed  with  flesh  and  muscle  the  scanty 
skeleton  of  barbarous  usage.  The  change  must  be 
supposed  to  have  taken  place  before  the  Germanic 
tribes  had  distinctly  appropriated,  as  conquerors, 


289 


ROMAN  AND  BARBARIAN  LAW.       chap.  ym. 


any  portion  of  the  Roman  dominions,  and  therefore 
long  before  Germanic  monarchs  bad  ordered  brevia- 
ries of  Roman  law  to  be  drawn  up  for  the  use  of 
their  Roman  subjects.  The  necessity  for  some  such 
hypothesis  will  be  felt  by  everybody  who  can  appre- 
ciate the  difference  between  archaic  and  developed 
law.  Rude  as  are  the  Leges  Barharorum  which  re- 
main to  us,  they  are  not  rude  enough  to  satisfy  the 
theory  of  their  purely  barbarous  origin ;  nor  have 
we  any  reason  for  believing  that  we  have  received, 
in  written  records,  more  than  a  fraction  of  the  fixed 
rules  which  were  practised  among  themselves  by  the 
members  of  the  conquering  tribes.  If  we  can  once 
persuade  ourselves  that  a  considerable  element  of 
debased  Roman  law  already  existed  in  the  barbarian 
systems,  we  shall  have  done  something  to  remove  a 
grave  difficulty.  The  German  law  of  the  conquerors 
and  the  Roman  law  of  their  subjects  would  not  have 
combined  if  they  had  not  possessed  more  affinity  for 
each  other  than  refined  jurisprudence  has  usually  for 
the  customs  of  savages.  It  is  extremely  likely  that 
the  codes  of  the  barbarians,  archaic  as  they  seem, 
are  only  a  compound  of  true  primitive  usage  with 
half-understood  Roman  rules,  and  that  it  was  the 
foreign  ingredient  which  enabled  them  to  coalesce 
with  a  Roman  jurisprudence  that  had  already  rece- 
ded somewhat  from  the  comparative  finish  which  it 
had  acquired  under  the  Western  Emperors. 

But,  though  all  this  must  be  allowed,  there  are 
several  considerations  which  render  it  unlikely  that 


CHAP.  YHI. 


THE  EMPHYTEUSIS. 


289 


the  feudal  form  of  ownership  was  directly  suggested 
by  the  Roman  duplication  of  domaiuial  rights.  The 
distinction  between  legal  and  equitable  property 
strikes  one  as  a  subtlety  little  likely  to  be  appreciated 
by  barbarians;  and,  moreover,  it  can  scarcely  be  un- 
derstood unless  Courts  of  Law  are  contemplated  in 
regular  operation.  But  the  strongest  reason  against 
this  theory  is  the  existence  in  Roman  law  of  a  form 
of  property — a  creation  of  .Equity,  it  is  true — which 
supplies  a  much  simpler  explanation  of  the  transi- 
tion from  one  set  of  ideas  to  the  other.  This  is  the 
Emphyteusis,  upon  which  the  Fief  of  the  middle 
ages  has  often  been  fathered,  though  without  much 
knowledge  of  the  exact  share  which  it  had  in  bring- 
ing feudal  ownership  into  the  world.  The  truth  is 
that  the  Emphyteusis,  not  probably  as  yet  known 
by  its  Greek  designation,  marks  one  stage  in  a  cur- 
rent of  ideas  which  led  ultimately  to  feudalism.  The 
first  mention  in  Roman  history  of  estates  larger  than 
could  be  farmed  by  a  Paterfamilias,  with  his  house- 
hold of  sons  and  slaves,  occurs  when  we  come  to  the 
holdings  of  the  Roman  patricians.  These  great  pro* 
prietore  appear  to  have  had  no  idea  of  any  system 
of  farming  by  free  tenants.  Their  latifundia  seem 
to  have  been  universally  cultivated  by  slave-gangs, 
under  bailiffs  who  were  themselves  slaves  or  freed 
men;  and  the  only  organisation  attempted  appears 
to  have  consisted  in  dividing  the  inferior  slaves  into 
small  bodies,  and  making  them  the  peeitHum  of  the 
better  and  trustier  sort,  who  thus  acquired  a  kind 


2»0  SYSTEMS  OF  TENANCY.  chap,  vie 

of  interest  in  the  efficiency  of  their  labour.  This 
system  was,  however,  especially  disadvantageous  to 
one  class  of  estated  proprietors,  the  Municipalities. 
Functionaries  in  Italy  were  changed  with  the  ra- 
pidity wThich  often  surprises  us  in  the  administration 
of  Home  herself ;  so  that  the  superintendence  of  a 
large  landed  domain  by  an  Italian  corporation  must 
have  been  excessively  imperfect.  Accordingly,  we 
are  told  that  with  the  municipalities  began  the  prac- 
tice of  letting  out  agri  vectigules,  that  is,  of  leasing 
land  for  a  perpetuity  to  a  free  tenant,  at  a  fixed 
rent,  and  under  certain  conditions.  The  plan  was 
afterwards  extensively  imitated  by  individual  pro- 
prietors, and  the  tenant,  whose  relation  to  the  owner 
had  originally  been  determined  by  his  contract,  was 
subsequently  recognised  by  the  Praetor  as  having 
himself  a  qualified  proprietorship,  which  in  time  be- 
came known  as  an  Emphyteusis.  From  this  point 
the  history  of  tenure  parts  into  two  branches.  In 
the  course  of  that  long  period  during  which  our 
records  of  the  Roman  Empire  are  most  incomplete, 
the  slave-gangs  of  the  great  Roman  families  became 
transformed  into  the  coloni,  whose  origin  and  situa- 
tion constitute  one  of  the  obscurest  questions  in  all 
history.  We  may  suspect  that  they  were  formed 
partly  by  the  elevation  of  the  slaves,  and  partly  by 
the  degradation  of  the  free  farmers  ;  and  that  they 
prove  the  richer  classes  of  the  Roman  Empire  to 
have  become  aware  of  the  increased  value  which 
landed  property  obtains  when  the  cultivator  has  an 


chap.  tiii.  THE  COLOXI.  291 

interest  iu  the  produce  of  the  land.  We  know  that 
their  servitude  was  predial ;  that  it  wanted  many 
of  the  characteristics  of  absolute  slavery,  and  that 
they  acquitted  their  service  to  the  landlord  in  ren- 
dering to  him  a  fixed  portion  of  the  annual  crop. 
We  know  further  that  they  survived  all  the  muta- 
tions of  society  in  the  ancient  and  modern  worlds. 
Though  included  in  the  lower  courses  of  the  feudal 
structure,  they  continued  in  many  countries  to  ren- 
der to  the  landlord  precisely  the  same  dues  which 
they  had  paid  to  the  Roman  dominus,  and  from  a 
particular  class  among  them,  the  coloni  medietarii, 
who  reserved  half  the  produce  for  the  owner,  are 
descended  the  metayer  tenantry,  who  still  conduct 
the  cultivation  of  the  soil  in  almost  all  the  South  of 
Europe.  On  the  other  hand,  the  Emphyteusis,  if 
we  may  so  interpret  the  allusions  to  it  in  the  Corpus 
Jwris,  became  a  favorite  and  beneficial  modification 
of  property ;  and  it  may  be  conjectured  that  wher- 
ever free  farmers  existed,  it  was  this  tenure  which 
regulated  their  interest  in  the  land.  The  Prffitor, 
as  has  been  said,  treated  the  Emphyteuta  as  a  true 
proprietor.  When  ejected,  he  was  allowed  to  rein- 
state himself  by  a  Real  Action,  the  distinctive  badge 
of  proprietary  right,  and  he  was  protected  from  dis- 
turbance by  the  author  of  his  lease  so  long  a.s  the 
ciinoii,  or  quit-rent,  was  punctually  paid.  Rut  at 
the  same  time  it  must  not  be  supposed  that  the 
ownership  of  the  author  of  the  lease  was  either  ex- 
tinct or  dormant.    It  was  kept  alive  by  a  power  of 


292 


ORIGIN  OF  TENURE. 


onAP.  vin. 


re-entry  on  non-payment  of  the  rent,  a  right  of  pre- 
emption in  case  of  sale,  and  a  certain  control  over 
the  mode  of  cultivation.  We  have,  therefore,  in  the 
Emphyteusis  a  striking  example  of  the  double  own- 
ership which  characterised  feudal  property,  and  one, 
moreover,  which  is  much  simpler  and  much  more 
easily  imitated  than  the  juxtaposition  of  legal  and 
equitable  rights.  The  history  of  the  Roman  tenure 
does  not  end,  however,  at  this  point.  We  have 
clear  evidence  that  between  the  great  fortresses 
which,  disposed  along  the  line  of  the  Rhine  and 
Danube,  long  secured  the  frontier  of  the  Empire 
against  its  barbarian  neighbours,  there  extended  a 
succession  of  strips  of  land,  the  agri  Mmitirophi, 
which  were  occupied  by  veteran  soldiers  of  the  Ro- 
man army  on  the  terms  of  an  Emphyteusis.  There 
was  a  double  ownership.  The  Roman  State  was 
landlord  of  the  soil,  but  the  soldiers  cultivated  it 
without  disturbance  so  long  as  they  held  themselves 
ready  to  be  called  out  for  military  service  whenever 
the  state  of  the  border  should  require  it.  In  fact,  a 
sort  of  garrison-duty,  under  a  system  closely  re- 
sembling that  of  the  military  colonies  on  the  Austro- 
Turkish  border,  had  taken  the  place  of  the  quit-rent 
which  was  the  service  of  the  ordinal')'  Emphytentn. 
It  seems  impossible  to  doubt  that  this  was  the  pre- 
cedent copied  by  the  barbarian  monarchs  who 
founded  feudalism.  It  had  been  within  their  view 
for  some  hundred  years,  and  many  of  the  veterans 
who  guarded  the  border  were,  it  is  to  be  remeni- 


cn.vp  tin. 


FEUDAL  SERVICES. 


293 


bered,  themselves  of  barbarian  extraction,  who 
probably  spoke  the  Germanic  tongues.  Not  only 
does  the  proximity  of  so  easily  followed  a  model  ex- 
plain whence  the  Frankish  and  Lombard  Sovereigns 
got  the  idea  of  securing  the  military  service  of  their 
followers  by  granting  away  portions  of  their  public 
domain  ;  but  it  perhaps  explains  the  tendency  which 
immediately  showed  itself  in  the  Benefices  to  become 
hereditary,  for  an  Emphyteusis,  though  capable  o£ 
being  moulded  to  the  terms  of  the  original  contract, 
nevertheless  descended  as  a  general  rule  to  the 
heirs  of  the  grantee.  It  is  true  that  the  holder  of 
a  benefice,  and  more  recently  the  lord  of  one  of 
those  fiefs  into  which  the  benefices  were  transformed, 
appears  to  have  owed  certain  services  which  were 
not  likely  to  have  been  rendered  by  the  military 
colonist,  and  were  certainly  not  rendered  by  the 
Emphyteuta.  The  duty  of  respect  and  gratitude  to 
the  feudal  superior,  the  obligation  to  assist  in  en- 
dowing his  daughter  and  equipping  his  son,  the  lia- 
bility to  his  guardianship  in  minority,  and  many 
other  similar  incidents  of  tenure,  must  have  been 
literally  borrowed  from  the  relations  of  Patron  and 
Freedman  under  Roman  law,  that  is,  of  quondam- 
master  and  quondam-slave.  But  then  it  is  known 
that  the  earliest  beneficiaries  were  the  personal  com- 
panions of  the  sovereign,  and  it  is  indisputable  that 
this  position,  brilliant  as  it  seems,  was  at  first  at- 
tended by  some  shade  of  servile  debasement.  The 


294 


FEUDAL  SERVICES. 


chap.  nil. 


person  who  ministered  to  the  Sovereign  in  his  Court 
had  given  up  soraethiug  of  that  absolute  personal 
freedom  which  was  the  proudest  privilege  of  the 
allodial  proprietor. 


CHAPTER  IX. 


TEE  EARLY  EISTORY  OF  CONTRACT. 


There  are  few  general  propositions  concerning  the 
age  to  which  we  belong  which  seem  at  first  siorht 

o  o  o 

likely  to  be  received  with  readier  concurrence  than 
the  assertion  that  the  society  of  our  day  is  mainly 
distinguished  from  that  of  preceding  generations  by 
the  largeness  of  the  sphere  which  is  occupied  in  it 
by  Contract.  Some  of  the  phenomena  on  which 
this  proposition  rests  are  among  those  most  fre- 
quently singled  out  for  notice,  for  comment,  and  for 
eulogy.  Not  many  of  us  are  so  unobservant  as  not 
to  perceive  that  in  innumerable  cases  where  old  law 
fixed  a  man's  social  position  irreversibly  at  his  birth, 
modern  law  allows  him  to  create  it  for  himself  by 
convention ;  and  indeed  several  of  the  few  excep- 
tions which  remain  to  this  rule  are  constantly  de- 
nounced with  passionate  indignation.  The  point, 
for  instance,  which  i-  really  debated  in  the  vigorous 
controversy  still  carried  on  upon  the  subject  of  negro 
servitude,  is  whether  the  status  of  the  slave  does  not 


296        CONTRACT  AND  POLITICAL  ECONOMY,    chap.  ix. 


belong  to  by-gone  institutions,  and  whether  the  only 
relation  between  employer  and  labourer  which  com- 
mends itself  to  modern  morality  be  not  a  relation  de- 
termined exclusively  by  contract.  The  recognition 
of  this  difference  between  past  ages  and  the  present 
enters  into  the  very  essence  of  the  most  famous  con- 
temporary speculations.  It  is  certain  that  the  science 
of  Political  Economy,  the  only  department  of  moral 
inquiry  which  has  made  any  considerable  progress  in 
our  day,  would  fail  to  correspond  with  the  facts  of 
life  if  it  were  not  true  that  Imperative  Law  had 
abandoned  the  largest  part  of  the  field  which  it  once 
occupied,  and  had  left  men  to  settle  rules  of  conduct 
for  themselves  with  a  liberty  never  allowed  to  them 
till  recently.  The  bias  indeed  of  most  persons  trained 
in  political  economy  is  to  consider  the  general  truth 
on  which  their  science  reposes  as  entitled  to  become 
universal,  and,  when  they  apply  it  as  an  art,  their  ef- 
forts are  ordinarily  directed  to  enlarging  the  province 
of  Contract  and  to  curtailing  that  of  Imperative  Law, 
except  so  for  as  law  is  necessary  to  enforce  the  per- 
formance of  Contracts.  The  impulse  given  by  think- 
ers  who  are  under  the  influence  of  these  ideas  is  be- 
ginning to  be  very  strongly  felt  in  the  "Western 
world.  Legislation  has  nearly  confessed  its  Inability 
to  keep  pace  with  the  activity  of  man  in  discovery, 
in  invention,  and  in  the  manipulation  of  accumulated 
wealth  ;  and  the  law  even  of  the  least  advanced 
communities  tends  more  and  more  to  become  a  mere 
surface-stratum,  having  under  it  an  ever-changing  as- 


ohai\  ix.    CURRENT  OPINIONS  AS  TO  CONTRACT.  297 


semblage  of  contractual  rules  with  which  it  rarefy  in- 
terferes except  to  compel  compliance  with  a  few  fun- 
damental principles,  or  unless  it  be  called  in  to  pun- 
ish the  violation  of  good  faith. 

Social  inquiries,  so  far  a3  they  depend  on  the  con- 
sideration of  legal  phenomena,  are  in  so  backward  a 
condition  that  we  need  not  be  surprised  at  not  find- 
ing these  truths  recognised  in  the  commonplaces 
which  pass  current  concerning  the  progress  of  so- 
ciety. These  commonplaces  answer  much  more  to 
our  prejudices  than  to  our  convictions.  The  strong 
disinclination  of  most  men  to  regard  morality  as  ad- 
vancing seems  to  be  especially  powerful  when  the 
virtues  on  which  Contract  depends  are  in  question, 
and  many  of  us  have  an  almost  instinctive  reluctance 
to  admitting  that  good  faith  and  trust  in  our  fellows 
are  more  widely  diffused  than  of  old,  or  that  there 
is  anything  in  contemporary  manners  which  parallels 
the  loyalty  of  the  antique  world.  From  time  to 
time,  these  prepossessions  are  greatly  strengthened 
by  the  spectacle  of  frauds,  unheard  of  before  the  pe- 
riod at  which  they  were  observed,  and  astonishing 
from  their  complication  as  well  shocking  from  crimi- 
nality. But  the  very  character  of  these  frauds  shows 
clearly  that,  before  they  became  possible,  the  moral 
obligations  of  which  they  are  the  breach  must  have 
been  more  than  proportionately  developed.  It  is  the 
ronfidence  reposed  and  deserved  by  the  many  which 
affords  facilities  for  the  bad  faith  of  the  few,  so  that 
if  colossal  example's  of  dishonesty  occur,  there  is  no 


293  THEFT  AND  BREACH  OF  TRUST.       chap,  ix 


surer  conclusion  than  that  scrupulous  honesty  is  dis- 
played in  the  average  of  the  transactions  which,  in 
the  particular  case,  have  supplied  the  delinquent 
with  his  opportunity.  If  we  insist  on  reading  the 
history  of  morality  as  reflected  in  jurisprudence,  by 
turning  our  eyes  not  on  the  law  of  Contract  but  on 
the  law  of  Crime,  we  must  be  careful  that  we  read 
it  aright.  The  only  form  of  dishonesty  treated  of  in 
the  most  ancient  Roman  law  is  Theft.  At  the  mo  . 
ment  at  which  I  write,  the  newest  chapter  in  the  Eng- 
lish criminal  law  is  one  which  attempts  to  prescribe 
punishment  for  the  frauds  of  Trustees.  The  proper 
inference  from  this  contrast  is  not  that  the  primitive 
Romans  practised  a  higher  morality  than  ourselves. 
We  should  rather  say  that,  in  the  interval  between 
their  day  and  ours,  morality  had  advanced  from  a 
very  rude  to  a  highly  refined  conception — from  view- 
ing the  rights  of  property  as  exclusively  sacred,  to 
looking  upon  the  rights  growing  out  of  the  mere 
unilateral  reposal  of  confidence  as  entitled  to  the 
protection  of  the  penal  law. 

The  definite  theories  of  jurists  are  scarcely  nearer 
the  truth  in  this  point  than  the  opinions  of  the  mul- 
titude. To  begin  with  the  views  of  the  Roman  law- 
yers, we  find  them  inconsistent  with  the  true  history 
of  moral  and  legal  progress.  One  class  of  contracts, 
in  which  the  plighted  faith  of  the  contracting  par- 
ties was  the  only  material  ingredient,  they  specifically 
denominated  Contracts  juris  gentium,  and  though 
these  contracts  were  undoubtedly  the  latest  boru 


CHAP.  IX. 


THEORIES  OF  CONTRACT. 


299 


into  the  Roman  system,  the  expression  employed 
implies,  if  a  definite  meaning  be  extracted  from 
it,  that  they  were  more  ancient  than  certain  other 
forms  of  engagement  treated  of  in  Roman  law,  in 
which  the  neglect  of  a  mere  technical  formality  was 
as  fatal  to  the  obligation  as  misunderstanding  or 
deceit.  But  then  the  antiquity  to  which  they  were 
referred  was  vague,  shadowy,  and  only  capable  of 
being  understood  through  the  Present;  nor  was  it 
until  the  language  of  the  Roman  lawyers  became  the 
language  of  an  age  which  had  lost  the  key  to  their 
mode  of  thought  that  a  "  Contract  of  the  Law  of  Na- 
tions'' came  to  be  distinctly  looked  upon  as  a  Contract 
known  to  man  in  a  state  of  Nature.  Rousseau  adopted 
both  the  judicial  and  the  popular  error.  In  the  Dis- 
sertation on  the  effects  of  Art  and  Science  upon 
Morals,  the  first  of  his  works  which  attracted  atten- 
tion and  the  one  in  which  he  states  most  unreserved- 
ly the  opinions  which  made  him  the  founder  of  a  sect, 
the  veracity  and  good  faith  attributed  to  the  ancient 
Persians  are  repeatedly  pointed  out  as  traits  of  primi- 
tive innocence  which  have  been  gradually  obliterat- 
ed by  civilisation;  and  at  a  later  period  he  found  a 
basis  for  all  his  speculations  in  the  doctrine  of  an 
original  Social  Contract.  The  Social  Contract  or 
Compact  is  the  most  systematic  form  which  has  ever 
been  assumed  by  the  error  we  are  discussing.  It  is 
a  theory  which,  though  nursed  into  importance  by 
political  passions,  derived  all  its  sap  from  the  specu- 
lation! of  lawyers.    True  it  certainly  is  that  the  fa 


300 


THEORIES  OF  CONTRACT. 


onAP.  rs. 


mous  Englishmen,  for  whom  it  had  fh'sl  had  attrao 
tion,  valued  it  chiefly  for  its  political  serviceableness, 
but,  as  I  shall  presently  attempt  to  explain,  they 
would  never  have  arrived  at  it,  if  politicians  had  not 
long  conducted  their  controversies  in  legal  phraseo- 
logy. Nor  were  the  English  authors  of  the  theory 
blind  to  that  speculative  amplitude  which  recom- 
mended it  so  strongly  to  the  Frenchmen  who  in- 
herited  it  from  them.  Their  writings  show  they 
perceived  that  it  could  be  made  to  account  for  all 
social,  quite  as  well  as  for  all  political  phenomena. 
They  had  observed  the  fact,  already  striking  in  their 
day,  that  of  the  positive  rules  obeyed  by  men,  the 
greater  part  were  created  by  Contract,  the  lesser  by 
imperative  Law.  But  tin1}'  were  ignorant  or  care- 
less of  the  historical  relation  of  these  two  consti- 
tuents of  jurisprudence.  It  was  for  the  purpose, 
therefore,  of  gratifying  their  speculative  tastes  by 
attributing  all  jurisprudence  to  a  uniform  source,  as 
much  as  with  the  view  of  eluding  the  doctrines  which 
claimed  a  divine  parentage  for  Imperative  Law,  that 
they  devised  the  theory  that  all  Law  had  its  origin 
in  Contract.  In  another  stage  of  thought,  they  would 
have  been  satisfied  to  leave  their  theory  in  the  con- 
dition of  an  ingenious  hypothesis  or  a  convenient 
verbal  formula.  Hut  that  age  was  under  the  domin- 
ion of  legal  superstitions.  The  State  of  Nature  had 
been  talked  about  till  it  had  ceased  to  be  regarded  as 
paradoxical,  and  hence  it  seemed  easy  to  give  a  fal- 
lacious reality  and  definiteness  to  the  contractual  ori- 


chap.  ix.      ANALYSIS  OF  SOCIAL  PHENOMENA.  301 


gin  of  Law  by  insisting  on  the  Social  Compact  as  a 
historical  fact. 

Our  own  generation  has  got  rid  of  these  erroneous 
juridical  theories,  partly  by  outgrowing  the  intellec- 
tual state  to  which  they  belong,  and  partly  by  al 
most  ceasing  to  theorise  on  such  subjects  altogether. 
The  favorite  occupation  of  active  minds  at  the  pre- 
sent moment,  and  the  one  which  answers  to  the 
speculations  of  our  forefathers  on  the  origin  of  the 
social  state,  is  the  analysis  of  society  as  it  exists  and 
moves  before  our  eyes ;  but,  through  omitting  to  call 
in  the  assistance  of  history,  this  analysis  too  often  de- 
generates into  an  idle  exercise  of  curiosity,  and  is  es- 
pecially apt  to  incapacitate  the  inquirer  for  compre- 
hending states  of  society  which  differ  considerably 
from  that  to  which  he  is  accustomed.  The  mistake 
of  judging  the  men  of  other  periods  by  the  morality 
of  our  own  day  has  its  parallel  in  the  mistake  of  sup- 
posing that  every  wheel  or  bolt  in  the  modern  social 
machine  had  its  counterpart  id  more  rudimentary  so- 
cieties. Such  impressions  ramify  very  widely,  and 
masque  themselves  very  subtly,  in  historical  works 
written  in  the  modern  fashion  ;  but  I  find  the  trace 
of  their  presence  in  the  domain  of  jurisprudence  in 
the  praise  which  is  frequently  bestowed  on  the  little, 
apologue  of  Montesquieu  concerning  the  Troglodytes, 
inserted  in  the  Lettree  Persanes.  The  Troglodytes 
were  a  people  who  systematically  violated  their  Con- 
tracts, and  so  perished  utterly.  If  the  story  bears 
the  moral  which  its  author  intended,  and  is  employ 


803 


MONTESQUIEU'S  APOLOGUE. 


CHAP.  IX. 


ed  to  expose  an  anti-social  heresy  by  which  this  cen- 
tury and  the  last  have  been  threatened,  it  is  most  un- 
exceptionable ;  but  if  the  inference  be  obtained  from 
it  that  society  could  not-possibl}T  hold  together  with- 
out attaching  a  sacredness  to  promises  and  agree- 
ments which  should  be  on  something  like  a  par  with 
the  respect  that  is  paid  to  them  by  a  mature  civili- 
sation, it  involves  an  error  so  grave  as  to  be  fatal  to 
all  sound  understanding  of  legal  history.  The  fact  i9 
that  the  Troglodytes  have  flourished  and  founded 
powerful  states  with  very  small  attention  to  the  ob- 
ligations of  Contract.  The  point  which  before  all 
others  has  to  be  apprehended  in  the  constitution  of 
primitive  societies  is  that  the  individual  creates  for 
himself  few  or  no  rights,  and  few  or  no  duties.  The 
rules  which  he  obeys  are  derived  first  from  the  sta- 
tion into  which  he  is  born,  and  next  from  the  im- 
perative commands  addressed  to  him  by  the  chief  of 
the  household  of  which  he  forms  a  part.  Such  a  sys- 
tem leaves  the  very  smallest  room  for  Contract.  The 
members  of  the  same  family  (for  so  we  may  interpret 
the  evidence)  are  wholly  incapable  of  contracting 
with  each  other,  and  the  family  is  entitled  to  disre- 
gard the  engagements  by  which  any  one  of  its  sub- 
ordinate members  has  attempted  to  bind  it.  Family, 
it  is  true,  may  contract  with  family,  and  chieftain  with 
chieftain,  but  the  transaction  is  one  of  the  same  na- 
ture, and  encumbered  by  as  many  formalities,  as  the 
alienation  of  property,  and  the  disregard  of  one  iota 
of  the  performance  is  fatal  to  the  obligation.  The 


chap.  ix.        EARLY  NOTIONS  OF  CONTRACTS. 


positive  duty  resulting  from  one  man's  reliance  on 
the  word  of  another  is  among  the  slowest  conquests 
of  advauciug  civilisation. 

Neither  Ancient  Law  nor  any  other  source  of 
evidence  discloses  to  us  society  entirely  destitute  of 
the  conception  of  Contract.  But  the  conception, 
when  it  first  shows  itself,  is  obviously  rudimentary. 
No  trustworthy  primitive  record  can  he  read  with- 
out perceiving  that  the  habit  of  mind  which  induces 
us  to  make  good  a  promise  is  as  yet  imperfectly  de- 
veloped, and  that  acts  of  flagrant  perfidy  are  often 
mentioned  without  blame  and  sometimes  described 
with  approbation.  In  the  Homeric  literature,  for 
instance,  the  deceitful  cunning  of  Ulysses  appears 
as  a  virtue  of  the  same  rank  with  the  prudence  of 
Nestor,  the  constancy  of  Hector,  and  the  gallantry 
of  Achilles.  Ancient  law  is  still  more  suggestive 
of  the  distance  which  separates  the  crude  form  of 
Contract  from  its  maturity.  At  first,  nothing  is 
seen  like  the  interposition  of  law  to  compel  the  per- 
formance of  a  promise.  That  which  the  law  arms 
with  its  sanctions  is  not  a  promise,  but  a  promise 
accompanied  with  a  solemn  ceremonial.  Not  only 
are  the  formalities  of  equal  importance  with  the 
promise  itself,  but  they  are,  if  anything,  of  greater 
importance;  for  that  delicate  analysis  which  mature 
jurisprudence  applies  to  the  conditions  of  mind  under 
which  a  particular  verbal  assent  is  given  appears,  in 
ancient  law,  to  be  transferred  to  the  words  and  ges- 
tures of  the  accompanying  performance.    No  pledge 


304 


ANCIENT  CONTRACTS. 


CHAP.  IX. 


is  enforced  if  a  single  form  he  omitted  or  misplaced, 
but,  on  the  other  hand,  if  the  forms  can  be  shown 
to  have  been  accurately  proceeded  with,  it  is  of  no 
avail  to  plead  that  the  promise  was  made  under 
duress  or  deception.  The  transmutation,  of  this 
ancient  view  into  the  familiar  notion  of  a  Contract 
is  plainly  seen  in  the  history  of  jurisprudence.  First 
one  or  two  steps  in  the  ceremonial  are  dispensed 
with  ;  then  the  others  are  simplified  or  permitted 
to  be  neglected  on  certain  conditions  ;  lastly,  a  few 
specific  contracts  are  separated  from  the  rest  and 
allowed  to  be  entered  into  without,  form,  the  selected 
contracts  being  those  on  which  the  activity  and 
energy  of  social  intercourse  depend.  Slowly,  but 
most  distinctly,  the  mental  engagement  isolates 
itself  amid  the  technicalities,  and  gradually  becomes 
the  sole  ingredient  on  which  the  interest  of  the 
jurisconsult  is  concentrated.  Such  a  mental  engage- 
ment, signified  through  external  acts,  the  Romans 
called  a  Pact  or  Convention  ;  and  when  the  Conven- 
tion has  once  been  conceived  as  the  nucleus  of  a 
Contract,  it  soon  becomes  the  tendency  of  advancing 
jurisprudence  to  break  away  the  external  shell  of 
form  and  ceremony.  Forms  are  thenceforward  only 
retained  so  far  as  they  are  guarantees  of  authenticity, 
and  securities  for  caution  and  deliberation.  The 
idea  of  a  Contract  is  fully  developed,  or,  to  employ 
the  Roman  phrase,  Contracts  are  absorbed  in  Pacts. 

The  history  of  this  course  of  change  in  Roman 
law  is  exceedingly  instructive.  At  the  earliest  dawn 


ciiap.  ix.  EARLY  ROMAN'  CONTRACTS. 


305 


of  (he  jurisprudence,  the  term  in  use  for  a  Contract 
was  one  which  is  very  familiar  to  the  students  of 
historical  Latinity.  It  was  nexum,  and  the  parties 
to  the  contract  were  said  to  be  nexi,  expressions 
which  must  be  carefully  attended  to  on  account  of 
the  singular  durableness  of  the  metaphor  on  which 
they  are  founded.  The  notion  that  persons  under 
a  contractual  engagement  are  connected  together  by 
a  strong  bond  or  chain,  continued  till  the  last  to 
influence  the  Roman  jurisprudence  of  Contract ;  and 
flowing  thence  it  has  mixed  itself  with  modern  ideas. 
What  then  was  involved  in  this  nexum  or  bond  ? 
A  definition  which  has  descended  to  us  from  one  of 
the  Latin  antiquarians  describes  nexum  as  omneqnod 
geritur  per  ce-s  et  libram,  "  every  transaction  with 
the  copper  and  the  balance,"  and  these  words  have 
occasioned  a  good  deal  of  perplexity.  The  copper 
and  the  balance  are  the  well-known  accompaniments 
of  the  Mancipation,  the  ancient  solemnity  described 
in  a  former  chapter,  by  which  the  right  of  owner- 
ship in  the  highest  form  of  Roman  Property  was 
transferred  from  one  person  to  another.  Mancipa- 
tion was  a  conveyance,  and  hence  has  arisen  the 
difficulty,  for  the  definition  thus  cited  appears  to 
confound  Contracts  and  Conveyances,  which  in  the 
philosophy  of  jurisprudence  are  not  simply  kept 
apart,  but  are  actually  opposed  to  each  other.  The 
ju€  in  re,  right  in  rem,  right  "availing  against  all 
the  world,"  or  Proprietary  Right,  is  sharply  distin- 
guished by  the  analyst  of  mature  jurisprudence  from 
20 


866   SPECIALISING  PRO  "ESS  TX  ANCIENT  LAW.  chap.  ix. 


the  jus  ad  rem,  right  in  personam,  right  "  availing 
against  a  single  individual  or  group/'  or  Obligation. 
Now  Conveyances  transfer  Proprietary  Rights,  Con- 
tracts create  Obligations — how  then  can  the  two  be 
included  under  the  same  name  or  same  general  con- 
ception? This,  like  many  similar  embarrassments, 
has  been  occasioned  by  the  error  of  ascribing  to  the 
mental  condition  of  an  unformed  society  a  faculty 
which  pre-eminently  belongs  to  an  advanced  stage 
of  intellectual  development,  the  faculty  of  distin- 
guishing in  speculation  ideas  which  are  blended  in 
practice.  We  have  indications  not  to  be  mistaken 
of  a  state  of  social  affairs  in  which  Conveyances  and 
Contracts  were  practically  confounded ;  nor  did  the 
discrepance  of  the  conceptions  become  perceptible 
till  men  had  begun  to  adopt  a  distinct  practice  in 
contracting  and  conveying. 

It  may  here  be  observed  that  we  know  enough 
of  ancient  Roman  law  to  give  some  idea  of  the  mode 
of  transformation  followed  by  legal  conceptions  and 
by  legal  phraseology  in  the  infancy  of  Jurispru- 
dence. The  change  which  they  undergo  appears 
to  be  a  change  from  general  to  special ;  or,  as  we 
might  otherwise  express  it,  the  ancient  conceptions 
and  the  ancient  terms  are  subjected  to  a  process  of 
gradual  specialisation.  An  ancient  legal  conception 
corresponds  not  to  one  but  to  several  modern  con- 
ceptions. An  ancient  technical  expression  serves  to 
indicate  a  variety  of  things  which  in  modern  law 
have  separate  names  allotted  to  them.    If,  however, 


cn.\p.  ec.  SPECIALISING  PROCESS  IX  ANCIENT  LAW.  307 


we  take  up  the  history  of  Jurisprudence  at  the  next 
stage,  we  find  that  the  subordinate  conceptions  have 
gradually  disengaged  themselves,  and  that  the  old 
general  names  are  giving  way  to  special  appellations. 
The  old  general  conception  is  not  obliterated,  but  it 
has  ceased  to  cover  more  than  one  or  a  few  of  the 
notions  which  it  first  included.  So  too  the  old 
technical  name  remains,  but  it  discharges  only  one 
of  the  functions  which  it  once  performed.  We  may 
exemplify  this  phenomenon  in  various  ways.  Patri- 
archal Power  of  all  sorts  appears,  for  instance,  to 
have  been  once  conceived  as  identical  in  character, 
and  it  was  doubtless  distinguished  by  one  name. 
The  Power  exercised  by  the  ancestor  was  the  same 
whether  it  was  exercised  over  the  family  or  the  ma- 
terial property — over  flocks,  herds,  slaves,  children, 
or  wife.  "VVe  cannot  be  absolutely  certain  of  its  old 
Roman  name,  but  there  is  very  strong  reason  for 
believing,  from  the  number  of  expressions  indicating 
shades  of  the  notion  of  power  into  which  the  word 
maims  enters,  that  the  ancient  general  term  was 
manus.  But,  when  Roman  law  has  advanced  a  little, 
both  the  name  and  the  idea  have  become  specialised. 
Power  is  discriminated,  both  in  word  and  in  concep- 
tion, according  to  tbe object  over  which  it  is  exerted. 
Exercised  over  material  commodities  or  slaves,  it 
has  become  dominium — over  children  it  is  Potestas 
■ — over  free  persons  whose  services  have  been  made 
away  to  another  by  their  own  ancestor,  it  is  man 
ciju/nn — over  a  wife,  it  is  still  maims.    The  old 


308 


THE  XEXUM. 


word,  it  will  be  perceived,  has  not  altogether  fallen 
into  desuetude,  but  is  confined  to  one  very  special 
exercise  of  the  authority  it  had  formerly  denoted. 
This  example  will  enable  us  to  comprehend  the 
nature  of  the  historical  alliance  between  Contracts 
and  Conveyances.  There  seems  to  have  been  one 
solemn  ceremonial  at  first  for  all  solemn  transactions, 
and  its  name  at  Rome  appears  to  have  been  nexum. 
Precisely  the  same  forms  which  were  in  use  when 
a  conveyance  of  property  was  effected  seem  to  have 
been  employed  in  the  making  of  a  contract.  But 
we  have  not  very  far  to  move  onwards  before  we 
come  to  a  period  at  which  the  notion  of  a  Contract 
has  disengaged  itself  from  the  notion  of  a  Convey- 
ance. A  double  change  has  thus  taken  place.  The 
transaction  "  with  the  copper  and  the  balance,"  when 
intended  to  have  for  its  office  the  transfer  of  prop- 
erty, is  known  by  the  new  and  special  name  of 
Mancipation.  The  ancient  Nexum  still  designates 
the  same  ceremony,  but  only  when  it  is  employed 
for  the  special  purpose  of  solemnising  a  contract. 

When  two  or  three  legal  conceptions  are  spoken 
of  as  anciently  blended  in  one,  it  is  not  intended  to 
imply  that  some  one  of  the  included  notions  may 
not  be  older  than  the  others,  or,  when  those  others 
have  been  formed,  may  not  greatly  predominate  over 
and  take  precedence  over  them.  The  reason  why 
one  legal  conception  continues  so  long  to  cover  sev 
eral  conceptions,  and  one  technical  phrase  to  do 
instead  of  several,  is  doubtless  that  practical  changes 


chap.  ix.  CrTAXGES  IN  THE  NEXUM. 


309 


are  accomplished  iu  the  law  of  primitive  societies 
lono:  before  men  see  occasion  to  notice  or  name 
tliem.  Though  I  have  said  that  Patriarchal  Power 
was  not  at  first  distinguished  according  to  the  ob- 
jects  over  which  it  was  exercised,  I  feel  sure  that 
Tower  over  Children  was  the  root  of  the  old  con- 
ception of  Power;  and  I  cannot  doubt  that  the 
earliest  use  of  the  Nexum,  and  the  one  primarily 
regarded  by  those  who  resorted  to  it,  was  to  give 
proper  solemnity  to  the  alienation  of  property.  It 
is  likely  that  a  very  slight  perversion  of  the  Nexuni 
from  its  original  functions  first  gave  rise  to  its  em- 
ployment in  Contracts,  and  that  the  very  slightness 
of  the  change  long  prevented  its  being  appreciated 
or  noticed.  The  old  name  remained  because  men 
had  not  become  conscious  that  they  wanted  a  new 
one;  the  old  notion  clung  to  the  mind  because  no- 
body had  seen  reason  to  be  at  the  pains  of  examin- 
ing it.  We  have  had  the  process  clearly  exemplified 
in  the  history  of  Testaments.  A  Will  was  at  first 
a  simple  conveyance  of  Property.  It  was  only  the 
enormous  practical  difference  that  gradually  showed 
itself  between  this  particular  conveyance  and  all 
Others  which  caused  it  to  be  regarded  separately, 
and  even  as  it  was,  centuries  elapsed  before  the 
ameliorators  of  law  cleared  away  the  useless  encum- 
brance of  the  nominal  mancipation,  and  consented 
to  care  for  nothing  in  the  Will  but  the  expressed 
intentions  of  the.  Testator.  It  is  unfortunate  that 
we  cannot  track  the  early  history  of  Contracts  with 


810  CHANGES  IN  THE  NEXUM.  uiiap.  ix 


the  same  absolute  confidence  as  the  early  history  of 
Wills,  but  we  are  not  quite  without  hints  that  con 
tracts  first  showed  themselves  through  the  nexum 
being  put  to  a  new  use  and  afterwards  obtained 
recognition  as  distinct  transactions  through  the  im 
portant  practical  consequences  of  the  experiment. 
There  is  some,  but  not  very  violent,  conjecture  in 
the  following  delineation  of  the  process.  Let  us 
conceive  a  sale  for  ready  money  as  the  normal  type 
of  the  Nexum.  The  seller  brought  the  property  of 
which  he  intended  to  dispose — a  slave,  for  example 
---the  purchaser  attended  with  the  rough  ingots  of 
copper  which  served  for  money — and  an  indispensa- 
ble assistant,  the  libripens,  presented  himself  with  a 
pair  of  scales.  The  slave  with  certain  fixed  formal- 
ities was  handed  over  to  the  vendee — the  copper 
was  weighed  by  the  libripens  and  passed  to  the  ven- 
dor. So  long  as  the  business  lasted  it  was  a  nexum, 
and  the  parties  were  nexi;  but  the  moment  it  was 
completed,  the  nexum  ended,  and  the  vendor  and- 
purchaser  ceased  to  bear  the  name  derived  from 
their  momentary  relation.  But  now,  let  us  move  a 
step  onward  in  commercial  history.  Suppose  the 
slave  transferred,  but  the  money  not  paid.  In  that 
case  the  nexum  is  finished,  so  far  as  the  seller  is  con- 
cerned, and  when  he  has  once  handed  over  his  prop- 
erty, he  is  no  longer  nexus ;  but,  in  regard  to  the 
purchaser,  the  nexum  continues.  The  transaction, 
as  to  his  part  of  it,  is  incomplete,  and  he  is  still  con- 
sidered to  be  nexus.    It  follows,  therefore,  that  the 


chap.  ix.       CONVEYANCES  AND  CONTRACTS. 


311 


same  terra  described  the  conveyance  by  which  the 
right  of  property  was  transmitted,  and  the  persona] 
obligation  of  the  debtor  for  the  unpaid  purchase* 
money.  We  may  still  go  forward,  and  picture  to 
ourselves  a  proceeding  wholly  formal,  in  which 
nothing  is  handed  over  and  notliing  paid  ;  we  are 
brought  at  once  to  a  transaction  indicative  of  much 
higher  commercial  activity,  an  executory  Contract  of 
Sale. 

If  it  be  true  that,  both  in  the  popular  and  in  the 
professional  view,  a  Contract  was  long  regarded  as 
an  incomplete  Conveyance,  the  truth  has  importance 
for  many  reasons.  The  speculations  of  the  last  cen- 
tury concerning  mankind  in  a  state  of  nature,  are 
not  unfairly  summed  up  in  the  doctrine  that  "in  the 
primitive  society  property  was  nothing,  and  obliga- 
tion everything;"  and  it  will  now  be  seen  that,  if 
the  proposition  were  reversed,  it  would  be  nearer 
the  reality.  On  the  other  hand,  considered  histori- 
cally, the  primitive  association  of  Conveyances  and 
Contracts  explains  something  which  often  strikes 
the  scholar  and  jurist  as  singularly  enigmatical,  I 
mean  the  extraordinary  and  uniform  severity  of  very 
ancient  systems  of  law  to  debtors,  and  the  extrava- 
gant powers  which  they  lodge  with  creditors.  When 
once  we  understand  that  the  nexum  was  artificially 
prolonged  to  give  time  to  the  debtor,  we  can  better 
comprehend  his  position  in  the  eye  of  the  public 
and  of  the  law  .His  indebtedness  was  doubtless 
regarded  as  an  anomaly,  and  suspense  of  payment 


812 


CONVEYANCES  AND  CONTRACTS.       chap,  ix 


in  general  as  an  artifice  and  a  distortion  of  strict 
rule.  The  per  on  who  had  duly  consummated  his 
part  in  the  transaction  must,  on  the  contrary,  have 
stood  in  peculiar  favour;  and  nothing  would  seem 
more  natural  than  to  arm  him  with  stringent  facili- 
ties for  enforcing  the  completion  of  a  proceeding 
wThich,  of  strict  right,  ought  never  to  have  been  ex- 
tended or  deferred. 

Nexum,  therefore,  which  originally  signified  a 
Conveyance  of  property,  came  insensibly  to  denote 
a  Contract  also,  and  ultimately  so  constant  became 
the  association  between  this  word  and  the  notion  of 
a  Contract,  that  a  special  term,  Mancipium  or  Man- 
cipatio,  had  to  be  used  for  the  purpose  of  designating 
the  true  nexum  or  transaction  in  which  the  property 
wras  really  transferred.  Contracts  are  therefore  now 
severed  from  Conveyances,  and  the  first  stage  in  their 
history  is  accomplished,  but  still  they  are  far  enough 
from  that  epoch  of  their  development  when  the 
promise  of  the  contractor  has  a  higher  sacredness 
than  the  formalities  with  which  it  is  coupled.  In 
attempting  to  indicate  the  character  of  the  changes 
passed  through  in  this  interval,  it  is  necessary  to  tres- 
pass a  little  on  a  subject  which  lies  properly  beyond 
the  range  of  these  pages,  the  analysis  of  Agreement 
effected  by  the  Roman  jurisconsults.  Of  this  analy- 
sis, the  most  beautiful  monument  of  their  sagacity, 
I  need  not  say  more  than  that  it  is  based  on  the 
theoretical  separation  of  the  Obligation  from  the 
Convention  or  Pact.    Benthain  and  Mr.  Austin  have 


ob  a  p.  ix.     ROMAN  ANALYSIS  OF  AGREEMENT. 


313 


laid  clown  that  the  "two  main  essentials  of  a  con 
tract  are  these  :  first,  a  signification  by  the  promis- 
ing party  of  his  intention  to  do  the  acts  or  to  observe 
the  forbearances  which  he  promises  to  do  or  to  ob 
serve.  Secondly,  a  signification  by  the  promisee  thai 
he  expects  the  promising  party  will  fulfil  the  prof 
furred  promise."  This  is  virtually  identical  with 
the  doctrine  of  the  Roman  lawyers,  but  then,  in 
their  view,  the  result  of  these  "  significations  "  was 
not  a  Contract,  but  a  Convention  or  Pact.  A  Pact 
was  the  utmost  product  of  the  engagements  of  indi- 
viduals agreeing  among  themselves,  and  it  distinctly 
fell  short  of  a  Contract.  Whether  it  ultimately  be- 
came  a  Contract  depended  on  the  question  whether 
the  law  annexed  an  Obligation  to  it.  A  Contract 
was  a  Pact  (or  Convention)  plus  an  Obligation.  So 
long  as  the  Pact  remained  unclothed  with  the  Obli- 
gation, it  was  called  nude  or  naked. 

What  was  an  Obligation  ?  It  is  defined  by  the 
Roman  lawyers  as  "Juris  vinculum,  quo  necessitate 
adstringimur  alicujus  solvendse  rei."  This  definition 
connects  the  Obligation  with  the  Xexum  through 
the  common  metaphor  on  which  they  are  founded, 
and  >li<>\vs  u-  with  much  clearness  the  pedigree  of  a 
peculiar  conception.  The  obligation  is  the  "bond" 
or  "chain,"  with  which  the  law  joins  together  per- 
sons or  groups  of  persons,  in  con-equence  of  certain 
voluntary  acts.  The  acts  which  have  the  effect  of 
attracting  an  Obligation  are  chiefly  those  classed 
under  the  heads  of  Contract  and  Delict,  of  Agree- 


SH 


OBLIGATION. 


CDjI.  Li. 


merit  and  Wrong-;  but  a  variety  of  other  acts  have 
a  similar  consequence  which  are  not  capable  of  be- 
ing comprised  in  an  exact  classification.  It  is  to  be 
remarked,  however,  that  the  Pact  does  not  draw  to 
itself  the  Obligation  in  consequence  of  any  moral 
necessity  ;  it  is  the  law  which  annexes  it  in  the  pleni- 
tude of  its  power,  a  point  the  more  necessary  to  be 
noted,  because  a  different  doctrine  has  sometimes 
been  propounded  by  modern  interpreters  of  the 
Civil  Law  who  had  moral  or  metaphysical  theories 
of  their  own  to  support.  The  image  of  a  vinculum 
juris  colours  and  pervades  every  part  of  the  Roman 
law  of  Contract  and  Delict.  The  law  bound  the 
parties  together,  and  the  chain  could  only  be  un- 
done by  the  process  called  solutio,  an  expression  still 
figurative,  to  which  our  word  "payment"  is  only 
occasionally  and  incidentally  equivalent.  The  con- 
sistency with  which  the  figurative  image  was  allowed 
to  present  itself,  explains  an  otherwise  puzzling  pe- 
culiarity of  Roman  legal  phraseology,  the  fact  that 
"Obligation"  signifies  rights  as  well  as  duties,  the 
right,  for  example,  to  have  a  debt  paid  as  well  as 
the  duty  of  paying  it.  The  Romans  kept,  in  fact, 
the  entire  picture  of  the  "  legal  chain  "  before  their 
eyes,  and  regarded  one  end  of  it  no  more  and  no 
less  than  the  other. 

In  the  developed  Roman  law,  the  Convention,  as 
soon  as  it  was  completed,  was,  in  almost  all  cases,  at 
once  crowned  with  the  Obligation,  and  so  became  a 
Contract ;  and  this  was  the  result  to  which  contract- 


CONVENTION  AND  CONTRACT. 


315 


law  was  surely  tending  But  for  the  purpose  of  this 
inquiry,  we  must  attend  particularly  to  the  inter 
mediate  stage — that  in  which  something  more  than 
a  perfect  agreement  was  required  to  attract  the  Oh. 
ligation.  This  epoch  is  synchronous  with  the  period 
at  which  the  famous  Roman  classification  of  Con- 
tracts into  four  sorts — the  Verbal,  the  Literal,  the 
Real,  and  the  Consensual — had  come  into  use,  and 
during  which  these  four  orders  of  Contract  consti- 
tuted the  only  descriptions  of  engagement  which  the 
law  would  enforce.  The  meaning  of  the  fourfold  dis- 
tribution  is  readily  understood  as  soon  as  we  appre- 
hend the  theory  which  severed  the  Obligation  from 
the  Convention.  Each  class  of  contracts  was  in  met 
named  from  certain  formalities  which  were  required 
over  and  above  the  mere  agreement  of  the  contract* 
ing  parties.  In  the  Verbal  Contract,  as  soon  as  the 
(  invention  was  effected,  a  form  of  words  had  to  be 
gone  through  before  the  vinculum  juris  was  attached 
to  it.  In  the  Literal  Contract,  an  entry  in  a  ledger  or 
table-book  had  the  effect  of  clothing  the  Convention 
with  the  Obligation,  and  the  same  result  followed, 
iu  the  case  of  the  Real  Contract,  from  the  delivery 
of  the  lies  or  Tiling  which  was  the  subject  of  the 
preliminary  engagement.  The  Contracting  parties 
came,  in  short,  to  an  understanding  in  each  case; 
but,  if  they  went  no  further,  they  were  not  obli'jed 
to  one  another,  and  could  not  compel  performance 
or  ask  redress  for  a-  breach  of  faith.  But  let  them 
comply  with  certain  prescribed  formalities,  and  the 


SI  6 


ROMAN  CONTRACTS. 


CHAP,  nc 


Contract  was  immediately  complete,  taking  its  name 
from  the  particular  form  which  it  had  suited  them 
to  adopt.  The  exceptions  to  this  practice  will  be 
noticed  presently. 

I  have  enumerated  the  four  Contracts  in  theii 
historical  order,  which  order,  however,  the  Roman 
Institutional  writers  did  not  invariably  follow.  There 
can  be  no  doubt  that  the  Verbal  Contract  was  the 
most  ancient  of  the  four,  and  that  it  is  the  eldest 
known  descendant  of  the  primitive  Nexum.  Several 
species  of  Verbal  Contract  were  anciently  in  use,  but 
the  most  important  of  all,  and  the  only  one  treated 
of  by  our  authorities,  was  effected  by  means  of  a 
stipulation,  that  is,  a  Question  and  Answer ;  a  ques- 
tion addressed  by  the  person  who  exacted  the  promise, 
and  an  answer  given  by  the  person  who  made  it. 
This  question  and  answer  constituted  the  additional 
ingredient  which,  as  I  have  just  explained,  was  de- 
manded by  the  primitive  notion  over  and  above  the 
mere  agreement  of  the  persons  interested.  They 
formed  the  agency  by  which  the  Obligation  was  an- 
nexed. The  old  Nexum  has  now.  bequeathed  to 
maturer  jurisprudence  first  of  all  the  conception 
of  a  chain  uniting  the  contracting  parties,  and  this 
has  become  the  Obligation.  It  has  further  trans- 
mitted the  notion  of  a  ceremonial  accompanying  and 
consecrating  the  engagement,  and  this  ceremonial 
has  been  transmuted  into  the  Stipulation.  The  con- 
version of  the  solemn  conveyance,  which  was  the 
prominent  feature  of  the  original  Kexum,  into  a 


CHAP.  IX. 


THE  VERBAL  CONTRACT. 


317 


mere  question  and  answer,  would  be  more  of  a  mys- 
tery than  it  is  if  we  had  not  the  analogous  history 
of  Roman  Testaments  to  enlighten  us.  Looking  at 
that  history,  we  can  understand  how  the  formal  con- 
veyance was  first  separated  from  the  part  of  the 
proceeding  which  had  immediate  reference  to  the 
business  in  hand,  and  how  afterwards  it  was  omit- 
ted altogether.  As  then  the  question  and  answer  of 
the  Stipulation  were  unquestionably  the  Nexum  in 
a  simplified  shape,  we  are  prepared  to  find  that  they 
long  partook  of  the  nature  of  a  technical  term.  It 
would  be  a  mistake  to  consider  them  exclusively  re- 
commending themselves  to  the  older  Roman  lawyers 
through  their  usefulness  in  furnishing  persons  med- 
itating an  agreement  with  an  opportunity  for  consid- 
eration and  reflection.  It  is  not  to  be  disputed  that 
they  had  a  value  of  this  kind,  which  was  gradu- 
ally recognised;  but  there  is  proof  that  their  function 
in  respect  to  Contracts  was  at  first  formal  and  cere- 
monial in  the  statement  of  authorities,  that  not  every 
question  and  answer  was  of  old  sufficient  to  const  i 
tute  a  Stipulation,  but  only  a  question  and  answer 
couched  in  technical  phraseology  specially  appro- 
priated to  the  particular  occasion. 

But  although  it  is  essential  for  the  proper  appre- 
c  iat  iou  of  the  history  of  contract-law  that  the  Stipu- 
lation should  be  understood  to  have  been  looked 
upon  as  a  solemn  form  before  it  was  recognised  as  a 
useful  security,  it  would  be  wrong  on  the  other  hand 
to  shut  our  eyes  to  ils  real  usefulness.    The  Verbal 


318        CONVENIENCE  OF  VERBAL  CONTRACT,    chap,  rx 


Contract,  though  it  had  lost  much  of  its  ancient  im 
portance,  survived  to  the  latest  period  of  Roman 
jurisprudence ;  and  we  may  take  it  for  granted  that 
no  institution  of  Roman  law  had  so  extended  a  lon- 
gevity unless  it  served  some  practical  advantage. 
I  observe  in  an  English  writer  some  expressions  of 
surprise  that  the  Romans  even  of  the  earliest  times 
Were  content  with  so  meagre  a  protection  against 
haste  and  irreflection.  But  on  examining  the  Stipu- 
lation closely,  and  remembering  that  we  have  to  do 
with  a  state  of  society  in  which  written  evidence 
was  not  easily  procurable,  I  think  we  must  admit 
that  this  Question  and  Answer,  had  it  been  expressl y 
devised  to  answer  the  purpose  which  it  served,  would 
have  been  justly  designated  a  highly  ingenious  ex- 
pedient. It  was  the  promisee  who,  in  the  character 
of  stipulator,  put  all  the  terms  of  the  contract  into 
the  form  of  a  question,  and  the  answer  was  given  by 
the  promisor.  "  Do  you  promise  that  you  will  de- 
liver me  such  and  such  a  slave,  at  such  and  such  a 
place,  on  such  and  such  a  day  ?  "  "I  do  promise.1' 
Now,  if  we  reflect  for  a  moment,  we  shall  see  that 
this  obligation  to  put  the  promise  interrogatively 
inverts  the  natural  position  of  the  parties,  and,  by 
effectually  breaking  the  tenor  of  the  comersation, 
prevents  the  attention  from  gliding  over  a  dangerous 
pledge.  With  us,  a  verbal  promise  is,  generally 
speaking,  to  be  gathered  exclusively  from  the  words 
of  the  promisor.  In  old  Roman  law,  another  step 
was  absolutely  required;  it  was  necessary  for  the 


chap.  ix.    CONVENIENCE  OF  VERBAL  CONTRACT.  319 


promisee,  after  the  agreement  had  been  made,  to 
sum  up  all  its  terms  in  a  solemn  interrogation  ;  and 
it  was  of  this  interrogation,  of  course,  and  of  the 
assent  to  it,  that  proof  had  to  be  given  at  the  trial 
— not  of  the  promise,  which  was  not  in  itself  bind 
ing.  How  great  a  difference  this  seemingly  insig- 
nificant peculiarity  may  make  in  the  phraseology  of 
contract-law  is  speedily  realised  by  the  beginner  in 
Soman  jurisprudence,  one  of  whose  first  stumbling- 
blocks  is  almost  universally  created  by  it.  When 
we  in  English  have  occasion,  in  mentioning  a  con- 
tract,  to  connect  it  for  convenience'  sake  with  one 
of  the  parties, — for  example,  if  we  wished  to  speak 
generally  of  a  contractor, — it  is  always  the  promise*/* 
at  whom  our  words  are  pointing.  But  the  general 
language  of  Roman  law  takes  a  different  turn  ;  it 
always  regards  the  contract,  if  we  may  so  speak, 
from  the  point  of  view  of  the  promise;  in  speaking 
of  a  party  to  a  contract,  it  is  always  the  Stipulator, 
the  person  who  asks  the  question,  who  is  primarily 
alluded  to.  But  the  serviceableness  of  the  stipula- 
tion is  most  vividly  illustrated  by  referring  to  the 
actual  examples  in  the  pages  of  the  Latin  comic 
dramatists.  If  the  entire  scenes  are  read  down  in 
which  these  passages OCCUT  (ex.  gra.  Plautus,  PaeU' 
dohi*!  Act  I.  sc.  1  ;  Act  IV.  sc.  G ;  Trim/mmus,  Act 
V.  sc.  2),  it  will  be  perceived  how  effectually  the  at- 
tention of  the  person  meditating  the  promise  must 
have  been  arrested  by  the  question,  and  how  ample 


320 


THE  LITERAL  CONTRACT. 


CHAP  IX. 


was  the  opportunity  for  withdrawal  from  an  im- 
provident undertaking. 

In  the  Literal  or  Written  Contract,  the  formal 
act  by  which  an  Obligation  was  superinduced  on 
the  Convention,  was  an  entry  of  the  sum  due,  where 
it  could  be  specifically  ascertained,  on  the  debit  side 
of  a  ledger.  The  explanation  of  this  contract  turns 
on  a  point  of  Roman  domestic  manners,  the  syste- 
matic character  and  exceeding  regularity  of  book- 
keeping in  ancient  times.  There  are  several  minor 
difficulties  of  old  Roman  law,  as,  for  example,  the 
nature  of  the  Slave's  Peculium,  which  are  only 
cleared  up  when  we  recollect  that  a  Roman  house- 
hold consisted  of  a  number  of  persons  strictly  ac- 
countable to  its  head,  and  that  every  single  item  of 
domestic  receipt  and  expenditure,  after  being  entered 
in  waste  books,  was  transferred  at  stated  periods  to 
a  general  household  ledger.  There  are  some  obscu- 
rities, however,  in  the  descriptions  we  have  received 
of  the  Literal  Contract,  the  fact  being  that  the  habit 
of  keeping  books  ceased  to  be  universal  in  later 
times,  and  the  expression  "  Literal  Contract,"  came 
to  signify  a  form  of  engagement  entirely  different 
from  that  originally  understood.  We  are  not,  there- 
fore, in  a  position  to  say,  with  respect  to  the  primi- 
tive Literal  Contract,  whether  the  obligation  was 
created  by  a  simple  entry  on  the  part  of  the  creditor, 
or  whether  the  consent  of  the  debtor  or  a  correspond- 
ent entry  in  his  own  books  was  necessary  to  give  it 
legal  effect.    The  essential  point  is  however  estal> 


onip.  ix. 


THE  REAL  CONTRACT. 


321 


Ushed,  that,  in  the  case  of  this  Contract,  all  formal 
ities  were  dispensed  with  on  a  condition  being  com 
plied  with.  This  is  another  step  downwards  in  th« 
history  of  contract-law. 

The  Contract  which  stands  next  in  historical 
succession,  the  Real  Contract,  shows  a  great  advance 
in  ethical  conceptions.  Whenever  any  agreement 
had  for  its  object  the  delivery  of  a  specific  thing — 
and  this  is  the  case  with  the  large  majority  of  simply 
engagements — the  Obligation  was  drawn  down  as 
soon  as  the  delivery  had  actually  taken  place.  Such 
a  result  must  have  involved  a  serious  innovation  on 
the  oldest  ideas  of  Contract;  for  doubtless,  in  the 
primitive  times,  when  a  contracting  party  had  neg- 
lected to  clothe  his  agreement  in  astipulation,  uoth- 
ing  done  in  pursuance  of  the  agreement  would'  be 
recognised  by  the  law.  A  person  who  had  paid 
over  money  on  loan  would  be  unable  to  sue  for  its 
repayment  unless  he  had  formally  at ipulated  for  it. 
But,  in  the  Real  Contract,  performance  ou  one  side 
is  allowed  to  impose  a  legal  duty  on  the  other — 
evidently  on  ethical  grounds.  For  the  first  time 
then  moral  considerations  appear  as  an  ingredient 
in  Contract-law,  and  the  Real  Contract  differs  from 
its  two  predecessors  in  being  founded  on  these,  rather 
than  on  respect  for  technical  forms  or  on  deference 
to  Roman  domes!  ic  habits. 

We  now  reach  the  fourth  class,  or  Consensual 
Contracts,  the  most  interesting  and  important  of  all. 
Four  speeilied  Contracts  were  distinguished  by  this 
21 


322  THE  CONSENSUAL  CONTRACTS.        chap,  ix 

name  :  Mandatum,  i.  e.  Commission  or  Agency;  So- 
cietas  or  Partnership  ;  Emtio  Venditio  or  Sale  ;  and 
Locatio  Conductio  or  Letting  and  Hiring.  A  few 
pages  back,  after  stating  that  a  Contract  consisted 
of  a  Pact  or  Convention  to  which  an  Obligation  had 
been  superadded,  I  spoke  of  certain  acts  or  formali- 
ties by  which  the  law  permitted  the  Obligation  to 
be  attracted  to  the  Pact.  I  used  this  lansruarre  on 
account  of  the  advantage  of  a  general  expression, 
but  it  is  not  strictly  correct  unless  it  be  understood 
to  include  the  negative  as  well  as  the  positive.  For, 
in  truth,  the  peculiarity  of  these  Consensual  Con- 
tracts is  that  no  formalities  are  required  to  create 
them  out  of  the  Pact.  Much  that  is  indefensible, 
and  much  more  that  is  obscure,  has  been  written 
about  the  Consensual  Coutracts,  and  it  has  even  been 
asserted  that  in  them  the  consent  of  the  Parties  is 
more  emphatically  given  than  in  any  other  species 
of  agreement.  But  the  term  Consensual  merely  in 
dicates  that  the  Obligation  is  here  annexed  at  once 
to  the  Consensus.  The  Consensus,  or  mutual  assent 
of  the  parties,  is  the  final  and  crowning  ingredient 
in  the  Convention,  and  it  is  the  special  characteristic 
of  agreements  falling  under  one  of  the  four  heads 
of  Sale,  Partnership,  Agency,  and  Hiring,  that,  as 
soon  as  the  assent  of  the  parties  has  supplied  this 
ingredient,  there  is  at  once  a  Contract.  The  Con- 
sensus draws  with  it  the  Obligation,  performing,  in 
transactions  of  the  sort  specified,  the  exact  functions 
which  are  discharged,  in  the  other  contracts,  by  the 


on vp.  ix.         THE  CONSENSUAL  CONTRACTS.  323 

lies  or  Tiling,  by  the  Verba  stipulations,  and  by 
the  Literal  or  written  entry  in  a  ledger.  Consensual 
is  therefore  a  term  which  does  not  involve  the  slight- 
est anomaly,  but  is  exactly  analogous  to  Real,  Verbal, 
and  Literal. 

In  the  intercourse  of  life  the  commonest  and 
most  important  of  all  the  contracts  are  unquestiona- 
bly the  four  styled  Consensual.  The  larger  part  of 
the  collective  existence  of  every  community  is  con- 
sumed in  transactions  of  buying  and  selling,  of  let- 
ting and  hiring,  of  alliances  between  men  for  pur- 
poses of  business,  of  delegation  of  business  from  one 
man  to  another;  and  this  is  no  doubt  the  considera- 
tion which  led  the  Romans,  as  it  has  led  most  socie- 
ties, to  relieve  these  transactions  from  technical 
incumbrance,  to  abstain  as  much  as  possible  from 
clogging  the  most  efficient  springs  of  social  move- 
ment. Such  motives  were  not  of  course  confined  to 
Rome,  and  the  commerce  of  the  Romans  with  their 
neighbours  must  have  given  them  abundant  oppor- 
tunities for  observing  that  the  contracts  before  ua 
tended  everywhere  to  become  Consensual,  obliga- 
tory on  the  mere  signification  of  mutual  assent. 
Hence,  following  their  usual  practice,  they  distin- 
guished these  contracts  as  contracts  Juris  Gentium, 
Yet  I  do  not  think  that  they  were  so  named  at  a 
very  early  period.  The  first  notions  of  a  Jus  Gen- 
tium may  have  been  deposited  in  the  minds  of  the 
Roman  lawyers  long  before  the  appointment  of  n 
Pwetor  Peregrinns,  but  it  would  only  be  through 


824 


THE  CONSENSUAL  CONTRACTS.         ohap.  ix 


extensive  and  regular  trad  3  that  they  would  be 
familiarised  with  the  contractual  system  of  other 
Italian  communities,  and  such  a  trade  would  scarcely  ( 
attain  considerable  proportions  before  Italy  had 
been  thoroughly  pacified,  and  the  supremacy  of 
Rome  conclusively  assured.  Although,  however, 
there  is  strong  probability  that  the  Consensual  Con- 
tracts were  the  latest-born  into  the  Roman  system, 
and  though  it  is  likely  that  the  qualification,  Juris 
Gentium,  stamps  the  recency  of  their  origin,  yet 
this  very  expression,  which  attributes  them  to  the 
"Law  of  Nations,"  has  in  modern  times  produced 
the  notion  of  their  extreme  antiquity.  For,  when 
the  "Law  of  Nations"  had  been  converted  into  the 
"Law  of  Nature,"  it  seemed  to  be  implied  that  the 
Consensual  Contracts  were  the  t}7pe  of  the  agree- 
ments most  congenial  to  the  natural  state  ;  and  hence 
arose  the  singular  belief  that  the  younger  the  civili- 
sation, the  simpler  must  be  its  forms  of  contract. 

The  Consensual  Contracts,  it  will  be  observed, 
were  extremely  limited  in  number.  But  it  cannot 
be  doubted  that  they  constituted  the  stage  in  the 
history  of  Contract-law  from  which  all  modern  con- 
ceptions of  contract  took  their  start.  The  motion 
of  the  will  which  constitutes  agreement  was  now 
completely  insulated,  and  became  the  subject  of  sep- 
arate contemplation  ;  forms  were  entirely  elimina- 
ted from  the  notion  of  contract,  and  external  acts 
were  only  regarded  as  symbols  of  the  internal  act 
of  volition.    The  Consensual  Contracts  had,  more- 


chap.  ix.      NATURAL  AND  CIVIL  OBLIGATIONS. 


over,  been  classed  in  the  Jus  Gentium,  and  it  wag 
lonor  before  this  classification  drew  with  it  the  infer- 
ence  that  they  were  the  species  of  agreement  which 
represented  the  engagements  approved  of  by  Nature 
and  included  in  her  code.  This  point  once  reached, 
we  are  prepared  for  several  celebrated  doctrines  and 
distinctions  of  the  Roman  lawyers.  One  of  them  is 
the  distinction  between  Natural  and  Civil  Obliga- 
tions. When  a  person  of  full  intellectual  maturity 
had  deliberately  bound  himself  by  an  engagement, 
he  was  said  to  be  under  a  natural  obligation,  even 
though  he  had  omitted  some  necessary  formality,  and 
even  though  through  some  technical  impediment  he 
was  devoid  of  the  formal  capacity  for  making  a  valid 
contract.  The  law  (and  this  is  what  the  distinc- 
tion implies)  would  not  enforce  the  obligation,  but 
it  did  not  absolutely  refuse  to  recognise  it;  and  nat- 
ural olli  (/at  ions  differed  in  many  respects  from  obli- 
gations which  were  merely  null  and  void,  more  par- 
ticularly in  the  circumstance  that  the"v  could  be 
civilly  confirmed,  if  the  capacity  for  contract  were 
subsequently  acquired.  Another  very  peculiar  doc- 
trine of  the  jurisconsults  could  not  have  had  its  ori- 
gin earlier  than  the  period  at  which  the  Convention 
was  severed  from  the  technical  ingredients  of  Con- 
tract,  They  taught  that  though  nothing  but  a  Con- 
trad  could  he  the  foundation  of  '.inaction,  a  mere 
Pact  or  Convention  could  be  the  basis  of  a  pl<<t.  It 
followed  from  this,  that  though  nobody  could  BU6 
upon  an  agreement  which  he  had  not  taken  the  pre- 


32G 


CHANGES  IX  CONTRACT-LAW.         chap,  ix 


caution  to  mature  into  a  Contract  by  complying  with 
the  proper  forms,  nevertheless  a  claim  arising  out  of  a 
valid  contract  could  be  rebutted  by  proving  a  coun- 
ter-agreement which  had  never  got  beyond  the  state 
of  a  simple  convention.  An  action  for  the  recovery 
of  a  debt  could  be  met  by  showing  a  mere  informal 
agreement  to  waive  or  postpone  the  payment. 

The  doctrine  just  stated  indicates  the  hesitation 
of  the  Praetors  in  making  their  advances  towards  the 
greatest  of  their  innovations.  Their  theory  of  Nat- 
ural law  must  have  led  them  to  look  with  especial 
favour  on  the  Consensual  Contracts  and  on  those 
Pacts  or  Conventions  of  which  the  Consensual  Con- 
tracts were  only  particular  instances  ;  but  they  did 
not  at  once  venture  on  extending  to  all  Conventions 
the  liberty  of  the  Consensual  Contracts.  They  took 
advantage  of  that  special  superintendence  over  pro- 
cedure which  had  been  confided  to  them  since  the 
first  beginnings  of  Roman  law,  and,  while  they  still 
declined  to  permit  a  suit  to  be  launched  which  was 
not  based  on  a  formal  contract,  they  gave  full  play  to 
their  new  theory  of  agreement  in  directing  the  ulte- 
rior stages  of  the  proceeding.  But  when  they  had 
proceeded  thus  for,  it  was  inevitable  that  they  should 
proceed  farther.  The  revolution  of  the  undent  law 
of  Contract  was  consummated  when  the  Praetor  of 
some  one  year  announced  in  his  Edict  that  he  would 
grant  equitable  actions  upon  Pacts  which  had  never 
been  matured  at  all  into  Contracts,  provided  only 
that  the  Pacts  in  question  had  been  founded  on  a 


CTa.P.  IX. 


PROGRESS  OF  CONTRACT-LAW. 


327 


consideration  (causa).  Pacts  of  this  sort  arc  always 
enforced  under  the  advanced  Roman  jurisprudence. 
The  principle  is  merely  the  principle  of  the  Consen 
sual  Contract  carried  to  its  proper  consequence; 
and,  in  fact,  if  the  technical  language  of  the  Romans 
had  been  as  plastic  as  their  legal  theories,  these 
Pacts  enforced  by  the  Praetor  would  have  been 
styled  new  Contracts,  new  Consensual  Contracts. 
Legal  phraseology  is.  however,  the  part  of  the  law 
which  is  the  last  to  alter,  and  the  Pacts  equitably 
enforced  continued  to  be  designated  simply  Praeto- 
rian Pacts.  It  will  be  remarked  that  unless  there 
were  consideration  for  the  Pact,  it  would  continue 
nuda  so  far  as  the  new  jurisprudence  was  concerned  ; 
in  order  to  give  it  effect,  it  would  be  necessary  to 
convert  it  by  a  stipulation  into  a  Verbal  Contract. 

The  extreme  importance  of  this  history  of  Con- 
tract, as  a  safeguard  against  almost  innumerable 
delusions,  must  be  my  justification  for  discussing  it 
At  so  considerable  a  length.  It  gives  a  complete 
account  of  the  march  of  ideas  from  one  ^reat  land- 
mark  of  jurisprudence  to  another.  We  begin  with 
the  Nexnm,  in  which  a  Contract  and  a  Conveyance 
are  blended,  and  in  which  the  formalities  which  ac- 
company the  agreement  are  even  more  important 
than  the  agreement  itself.  From  the  Nexum  we 
pMB  to  the  Stipulation,  which  is  a  simplified  form  of 
the  older  ceremonial.  The  literal  Contract  comes 
next  and  here  all.  formalities  are  waived,  if  proof 
of  the  agreement  can  be  supplied  from  the  rigid 


328 


PROGRESS  OF  CONTRACT-LAW.         chap.  ix. 


observances  of  a  Roman  household.    Ir  the  Real 
Contract  a  moral  duty  is  for  the  first  time  recognised, 
and  persons  who  have  joined  or  acquiesced  in  the 
partial  performance  of  an  engagement  are  forbidden 
to  repudiate  it  on  account  of  defects  in  form.  Lastly, 
the  Consensual  Contracts  emerge,  in  which  the  men- 
tal attitude  of  the  contractors  is  solely  regarded, 
and  external  circumstances  have  no  title  to  notice 
except  as  evidence  of  the  inward  undertaking.    It  is 
of  course  uncertain  how  far  this  progress  of  Roman 
ideas  from  a  gross  to  a  refined  conception  exemplifies 
the  necessary  progress  of  human  thought  on  the  sub- 
ject of  Contract.    The  Contract-law  of  all  other 
ancient  societies  but  the  Roman  is  either  too  scanty 
to  furnish  information,  or  else  is  entirely  lost ;  and 
modern  jurisprudence  is  so  thoroughly  leavened  with 
the  Roman  notions  that  it  furnishes  us  with  no  con 
trasts  or  parallels  from  which  instruction  can  be 
gleaned.    From  the  absence,  however,  of  everything 
violent,  marvellous,  or  unintelligible  in  the  changes 
I  have  described,  it  may  be  reasonably  believed  that 
the  history  of  Ancient  Roman  Contracts  is,  up  to  a 
certain  point,  typical  of  the  history  of  this  class  of 
legal  conceptions  in  other  ancient  societies.    But  it 
is  only  up  to  a  certain  point  that  the  progress  of 
Roman  law  can  be  taken  to  represent  the  progress 
of  other  systems  of  jurisprudence.    The  theory  of 
Natural  law  is  exclusively  Roman.    The  notion  of 
the  v  inculum  juris,  so  far  as  my  knowledge  extends, 
is  exclusively  Roman.    The  many  peculiarities  of 


chap.  ix.    INFLUENCE  OF  ROMAN  CONTRACT-LAW.  323 


the  mature  Roman  law  of  Contract  and  Delict  which 
are  traceable  to  these  two  ideas,  whether  singly  or 
in  combination,  are  therefore  among  the  exclusive 
products  of  one  particular  society.  These  later  legal 
conceptions  are  important,  not  because  they  typify 
the  necessary  results  of  advancing  thought  under  all 
conditions,  but  because  they  have  exercised  perfectly 
enormous  influence  on  the  intellectual  diathesis  of 
the  modern  world. 

I  know  nothing  more  wonderful  than  the  variety 
of  sciences  to  which  Roman  law,  Roman  Contract* 
law  more  particularly,  has  contributed  modes  of 
thought,  courses  of  reasoning,  and  a  technical  lan- 
guage. Of  the  subjects  which  have  whetted  the 
intellectual  appetite  of  the  moderns,  there  is  scarcely 
one,  except  Physics,  which  has  not  been  filtered 
through  Roman  jurisprudence.  The  science  of  pure 
Metaphysics  had,  indeed,  rather  a  Greek  than  a 
Roman  parentage,  but  Politics,  Moral  Philosophy, 
and  even  Theology,  found  in  Roman  law  not  only  a 
vehicle  of  expression,  but  a  nidus  in  which  some  of 
their  profoundest  inquiries  were  nourished  into  ma- 
turity. For  the  purpose  of  accounting  for  this  phe- 
nomenon, it  is  not  absolutely  necessary  to  discuss  the 
mysterious  relation  between  words  and  ideas,  or  to 
explain  how  it  is  that  the  human  mind  has  never 
grappled  with  any  subject  of  thought,  unless  it  has 
been  provided  beforehand  w  ith  a  proper  store  of 
language  and  with,  an  apparatus  of  appropriate 
logical  methods.     It  is  enough  to  remark,  that, 


830         STATE  OF  THOUGHT  IX  THE  EMPIRE,    chap.  h. 

when  the  philosophical  interests  of  the  Eastern  and 
Western  worlds  were  separated,  the  founders  of 
Western  thought  belonged  to  a  society  which  spoke 
Latin  and  reflected  in  Latin.  But  in  the  Western 
provinces  the  only  language  which  retained  sufficient 
precision  for  philosophical  purposes  was  the  lan- 
guage of  Roman  law,  which  by  a  singular  fortune 
had  preserved  nearly  all  the  purity  of  the  Augustan 
age,  while  vernacular  Latin  was  degenerating  into 
a  dialect  of  portentous  barbarism.  And  if  Roman 
jurisprudence  supplied  the  only  means  of  exactness 
in  speech,  still  more  emphatically  did  it  furnish 
the  only  means  of  exactness,  subtlety,  or  depth  in 
thought.  For  at  least  three  centuries,  philosophy 
and  science  were  without  a  home  in  the  West ;  and 
though  metaphysics  and  metaphysical  theology  were 
engrossing  the  mental  energies  of  multitudes  of 
Roman  subjects,  the  phraseology  employed  in  these 
ardent  inquiries  was  exclusively  Greek,  and  their 
theatre  was  the  Eastern  half  of  the  Empire.  Some- 
times, indeed,  the  conclusions  of  the  Eastern  dispu- 
tants became  so  important  that  every  man's  assent 
to  them,  or  dissent  from  them,  had  to  be  recorded, 
and  then  the  West  was  introduced  to  the  results  of 
Eastern  controversy,  which  it  generally  acquiesced 
in  without  interest  and  without  resistance.  Mean- 
while, one  department  of  inquiry,  difficult  enough 
for  the  most  laborious,  deep  enough  for  the  most 
subtle,  delicate  enough  for  the  most  refined,  hail 
never  lost  its  attractions  for  the  educated  classes  of 


chap.  ix.       EASTERN  AND  WESTERN  IDEAS. 


331 


the  "Western  provinces.  To  the  cultivated  citizen  of 
Africa,  of  Spain,  of  Gaul,  and  of  Northern  Italy, 
it  was  jurisprudence,  and  jurisprudence  only,  which 
stood  in  the  place  of  poetry  and  history,  of  philoso 
phy  and  science.  So  far  then  from  there  being  any- 
thing mysterious  in  the  palpably  legal  complexion 
of  the  earliest  efforts  of  Western  thought,  it  would 
rather  be  astonishing  if  it  had  assumed  any  other 
hue.  I  can  only  express  my  surprise  at  the  scanti- 
ness of  the  attention  Avhich  has  been  given  to  the 
difference  between  Western  ideas  aud  Eastern,  be- 
tween Western  theology  and  Eastern,  caused  by  the 
presence  of  a  new  ingredient.  It  is  precisely  be- 
cause the  influence  of  jurisprudence  begins  to  be 
powerful  that  the  foundation  of  Constantinople  and 
the  subsequent  separation  of  the  Western  empire 
from  the  Eastern,  are  epochs  in  philosophical  history. 
But  continental  thinkers  are  doubtless  less  capable 
of  appreciating  the  importance  of  this  crisis  by  the 
very  intimacy  with  which  notions  derived  from  Ro- 
man law  are  mingled  up  with  their  every-day  ideas. 
Englishmen,  on  the  other  hand,  are  blind  to  it 
through  the  monstrous  ignorance  to  which  they  con- 
demn themselves  of  the  most  plentiful  source  of  the 
stream  of  modern  knowledge,  of  the  one  intellectual 
result  of  the  Roman  civilisation.  At  the  same  time, 
an  Englishman,  who  will  be  at  the  pains  to  familiar- 
ise himself  with  the  classical  Roman  law,  is  perhaps, 
from  the  very  slightness  of  the  interest  which  his 
countrymen  have  hitherto  taken  in  the  subject,  a 


832 


QUASI-CONTRACT. 


CHAP.  IX 


"better  judge  than  a  Frenchman  or  German  of  the 
value  of  the  assertions  I  have  ventured  to  make 
Anybody  who  knows  what  Roman  jurisprudence  is 
as  actually  practised  by  the  Romans,  and  who  will 
observe  in  what  characteristics  the  earliest  Western 
theology  and  philosophy  differ  from  the  phases  of 
thought  which  preceded  them,  may  be  safely  left  to 
pronounce  what  was  the  new  element  which  had  be- 
gun to  pervade  and  govern  speculation. 

The  part  of  Roman  law  which  has  had  most  ex- 
tensive influence  on  foreign  subjects  of  inquiry  has 
been  the  law  of  Obligation,  or,  what  comes  nearly 
to  the  same  thing,  of  Contract  and  Delict.  The 
Romans  themselves  were  not  unaware  of  the  offices 
which  the  copious  and  malleable  terminology  belong- 
ing to  this  part  of  their  system  might  be  made  to 
discharge,  and  this  is  proved  by  their  employment 
of  the  peculiar  adjunct  quasi  in  such  expressions  as 
Quasi-Contract  and  Quasi-Delict.  "  Quasi,"  so  used, 
is  exclusively  a  term  of  classification.  It  has  been 
usual  with  English  critics  to  identify  the  quasi-con- 
tracts with  implied  contracts,  but  this  is  an  error,  for 
implied  contracts  are  true  contracts,  which  quasi- 
contracts  are  not.  In  implied  contracts,  acts  and 
circumstances  are  the  symbols  of  the  same  ingre- 
dients which  are  symbolised,  in  express  contracts, 
by  words ;  and  whether  a  man  employs  one  set  of 
symbols  or  the  other  must  be  a  matter  of  indiffer- 
ence so  far  as  concerns  the  theory  of  agreement 
But  a  Quasi-Contract  is  not  a  contract  at  all.  The 


CHAP.  IX. 


QUASI-CONTRACT. 


333 


commonest  sample  of  the  class  is  the  relation  sub- 
sisting betweeu  two  persons,  one  of  whom  has  paid 
money  to  the  other  through  mistake.  The  law, 
consulting  the  interests  of  morality,  imposes  an  ob- 
ligation on  the  receiver  to  refund,  but  the  very  na- 
ture of  the  transaction  indicates  that  it  is  not  a 
contract,  inasmuch  as  the  Convention,  the  most 
essential  ingredient  of  Contract,  is  wanting.  This 
word  "quasi,"  prefixed  to  a  term  of  Roman  law,  im- 
plies that  the  conception  to  which  it  serves  as  an 
index  is  connected  wifli  the  conception  with  which 
the  comparison  is  instituted  by  a  strong  superficial 
analogy  or  resemblance.  It  does  not  denote  that 
the  two  conceptions  are  the  same,  or  that  they  be- 
long to  the  same  genus.  On  the  contrary,  it  nega- 
tives the  notion  of  an  identity  between  them ;  but 
it  points  out  that  they  are  sufficiently  similar  for  one 
to  be  classed  as  the  sequel  to  the  other,  and  that  the 
phraseology  taken  from  one  department  of  law  may 
be  transferred  to  the  other,  and  employed  without 
violent  straining  in  the  statement  of  rules  which 
would  otherwise  be  imperfectly  expressed. 

It  has  been  shrewdly  remarked,  that  the  confu- 
sion between  Implied  Contracts,  which  are  true 
contracts,  and  Quasi-Contracts,  which  are  not  con- 
tracts at  all,  has  much  in  common  with  the  famous 
error  wt  ich  .attributed  political  rights  and  duties  to 
an  Original  Compact  between  the  governed  and  the 
governor.  Long  before  this  theory  had  clothed 
itself  in  definite  shape,  the  phraseology  of  Komau 


334 


THE  SOCIAL  COMPACT. 


CHAP.  IX 


contract-law  had  been  largely  drawn  upon  to  describe 
that  reciprocity  of  rights  and  duties  which  men  had 
always  conceived  as  existing  between  sovereigns 
and  subjects.  While  the  world  was  full  of  maxims 
setting  forth  with  the  utmost  positiveness  the  claims 
of  kings  to  implicit  obedience — maxims  which  pre- 
tended to  have  had  their  origin  in  the  New  Testa- 
ment, but  which  were  really  derived  from  indelible 
recollections  of  the  Caesarian  despotism — the  con- 
sciousness of  correlative  rights  possessed  by  the 
governed  would  have  been  entirely  without  the 
means  of  expression  if  the  Roman  law  of  Obliga- 
tion had  not  supplied  a  language  capable  of  shadow- 
ing  forth  an  idea  which  was  as  yet  imperfectly 
developed.  The  antagonism  between  the  privileges 
of  kings  and  their  duties  to  their  subjects  was  never, 
I  believe,  lost  sight  of  since  Western  history  began, 
but  it  had  interest  for  few  except  speculative  writers 
so  long  as  feudalism  continued  in  vigour,  for  feudal- 
ism effectually  controlled  by  express  customs  the 
exorbitant  theoretical  pretensions  of  most  European 
sovereigns.  It  is  notorious,  however,  that  as  soon 
as  the  decay  of  the  Feudal  System  had  thrown  the 
mediaeval  constitutions  out  of  working  order,  and 
when  the  Reformation  had  disci-edited  the  authority 
of  the  Pope,  the  doctrine  of  the  divine  right  of 
Kings  rose  immediately  into  an  importance  which 
had  uever  before  attended  it.  The  vOgue  which  it 
obtained  entailed  still  more  constant  resort  to  the 
phraseology  of  Roman  law,  and  a  controversy  which 


cnAK  ix.  POLITICS  AND  ROMAN  LAW. 


333 


had  originally  worn  a  theological  aspect  assumed 
more  and  more  the  air  of  a  legal  disputation.  A 
phenomenon  then  appeared  which  has  repeatedly 
shown  itself  in  the  history  of  opinion.  Just  when 
the  argument  for  monarchical  authority  rounded 
itself  into  the  definite  doctrine  of  Filmer,  the  phrase- 
ology, borrowed  from  the  Law  of  Contract,  which 
had  been  used  in  defence  of  the  rights  of  subjects, 
crystallised  into  the  theory  of  an  actual  original 
compact  between  king  and  people,  a  theory  which, 
first  in  English  and  afterwards,  and  more  particu- 
larly, in  French  hands,  expanded  into  a  comprehen- 
sive explanation  of  all  the  phenomena  of  society  and 
law.  But  the  only  real  connection  between  political 
and  legal  science  had  consisted  in  the  last  giving  to 
the  first  the  benefit  of  its  peculiarly  plastic  termi- 
nology. The  Roman  jurisprudence  of  Contract  had 
performed  for  the  relation  of  sovereign  and  subject 
precisely  the  same  service  which,  in  a  humbler 
sphere,  it  rendered  to  the  relation  of  persons  bound 
together  by  an  obligation  of  "  quasi-contract."  It 
had  furnished  a  body  of  words  and  phrases  which 
approximated  with  sufficient  accuracy  to  the  ideas 
which  then  were  from  time  to  time  forming  on  the 
subject  of  political  obligation.  The  doctrine  of  an 
Original  Compact  can  never  be  put  higher  than  it  is 
placed  by  Dr.  Whewell,  when  he  suggests  that, 
though  unsound,  <kit  may  be  a  convenient  form  for 
the  expression  of  moral  truths." 

The  extensive  employment  of  legal  language  on 


S36 


ETniCS  AND  ROMAN  LAW.  chap,  ix 


political  subjects  previously  to  the  invention  of  the 
Original  Compact,  and  the  powerful  influence  which 
that  assumption  has  exercised  subsequently,  amply 
account  for  the  plentifulness  in  political  science  of 
words  and  conceptions,  which  were  the  exclusive 
creation  of  Roman  jurisprudence.  Of  their  plenti- 
fulness in  Moral  Philosophy  a  rather  different  expla- 
nation must  be  given,  inasmuch  as  ethical  writings 
have  laid  Roman  law  under  contribution  much  more 
directly  than  political  speculations,  and  their  authors 
have  been  much  more  conscious  of  the  extent  of 
their  obligation.  In  speaking  of  moral  philosophy 
as  extraordinarily  indebted  to  Roman  jurisprudence, 
I  must  be  understood  to  intend  moral  philosophy 
as  understood  previously  to  the  break  in  its  history 
effected  by  Kant,  that  is,  as  the  science  of  the  rules 
governing  human  conduct,  of  their  proper  interpre- 
tation and  of  the  limitations  to  which  they  are  sub- 
ject. Since  the  rise  of  the  Critical  Philosophy,  moral 
science  has  almost  wholly  lost  its  older  moaning, 
and,  except  where  it  is  preserved  under  a  debased 
form  in  the  casuistry  still  cultivated  by  Roman 
Catholic  theologians,  it  seems  to  be  regarded  nearly 
universally  as  a  branch  of  ontological  inquiry.  I  do 
not  know  that  there  is  a  single  contemporary  Eng- 
lish writer,  with  the  exception  of  Dr.  Whewell,  who 
understands  moral  philosophy  as  it  was  understood 
before  it  was  absorbed  by  metaphysics  and  before 
the  groundwork  of  its  rules  came  to  be  a  more  im- 
portant consideration  than  the  rules  themselves.  So 


CHAP.  IX. 


ETHICS  AND  ROMAN  LAW. 


337 


long,  however,  a*  ethical  science  had  to  do  with  the 
practical  regimen  of  conduct,  it  was  more  or  less 
saturated  with  Roman  law.  Like  all  the  great  sub- 
jects of  modern  thought,  it  was  originally  incorpora- 
ted with  theology.  The  science  of  Moral  Theology, 
as  it  was  at  first  called,  and  as  it  is  still  designated 
by  the  Roman  Catholic  divines,  was  undoubtedly 
constructed,  to  the  full  knowledge  of  its  authors,  by 
taking  principles  of  conduct  from  the  system  of  the 
Church,  and  by  using  the  language  and  methods  of 
jurisprudence  for  their  expression  and  expansion. 
"While  this  process  went  on,  it  was  inevitable  that 
jurisprudence,  though  merely  intended  to  be  the 
vehicle  of  thought,  should  communicate  its  colour  to 
the  thought  itself.  The  tinge  received  through  con- 
tact with  legal  conceptions  is  perfectly  perceptible 
in  the  earliest  ethical  literature  of  the  modern  world, 
and  it  is  evident,  I  think,  that  the  Law  of  Contract, 
based  as  it  is  on  the  complete  reciprocity  and  indis- 
soluble connection  of  rights  and  duties,  h:is  acted  as 
a  wholesome  corrective  to  the  predispositions  of 
writers  who,  if  left  to  themselves,  might  have  ex-' 
clusively  viewed  a  moral  obligation  as  the  public 
duty  of  a  citizen  in  the  Ci  vitas  Dei.  But  the  amount 
of  Roman  Law  in  moral  theology  becomes  sensibly 
smaller  at  the  time  of  its  cultivation  by  the  great 
Spanish  moralists.  Moral  theology,  developed  by 
the  juridical  method  of  doctor  commenting  on  doctor, 
provided  itself  with- a  phraseology  of  its  ow  n,  and 
Aristotelian  peculiarities  of  reasoning  and  expres 
22 


338 


MORAL  PHILOSOPHY. 


cnAP.  ix. 


sion,  imbibed  doubtless  in  great  part  from  the  Dis- 
putations on  Morals  in  the  academical  schools,  take 
the  place  of  that  special  turn  of  thought  and  speech 
which  can  never  be  mistaken  by  any  person  conver- 
sant with  the  Roman  law.  If  the  credit  of  the 
Spanish  school  of  moral  theologians  had  continued, 
the  juridical  ingredient  in  ethical  science  would  have 
been  insignificant,  but  the  use  made  of  their  conclu- 
sions by  the  next  generation  of  Roman  Catholic 
writers  on  these  subjects  almost  entirely  destroyed 
their  influence.  Moral  Theology,  degraded'  into 
Casuistry,  lost  all  interest  for  the  leaders  of  Euro- 
pean speculation ;  and  the  new  science  of  Moral 
Philosophy,  which  was  entirely  in  the  hands  of  the 
Protestants,  swerved  greatly  aside  from  the  path 
which  the  moral  theologians  had  followed.  The 
effect  was  vastly  to  increase  the  influence  of  Roman 
law  on  ethical  inquiry. 

"  Shortly  *  after  the  Reformation,  we  find  two 
great  schools  of  thought  dividing  this  class  of  sub- 
jects between  them.  The  most  influential  of  the 
two  was  at  first  the  sect  or  school  known  to  us  as  the 
Casuists,  all  of  them  in  spiritual  communion  with 
the  Roman  Catholic  Church,  and  nearly  all  of  them 
affiliated  to  one  or  other  of  her  religious  orders.  On 
the  other  side  were  a  body  of  writers  connected  with 
each  other  by  a  common  intellectual  descent  from 
the  great  author  of  the  treatise  De  Jure  Belli  el 

•The  passage  quoted  is  transcribed,  with  slight  alterations,  from 
a  paper  contributed  hy  the  author  to  the  Cambridge  Esmtys  for  185G. 


cn.\r.  ix. 


GROTIUS  AND  ITTS  SCHOOL. 


339 


Paci-9,  lingo  Grotius.    Almost  all  of  the  latter  were 
adherents  of  the  Reformation  ;  and  though  it  cannot 
be  said  that  they  were  formally  and  avowedly  at 
conflict  with  the  Casuists,  the  origin  and  object  of 
their  system  were  nevertheless  essentially  different 
from  those  of  Casuistry.    It  is  necessary  to  call  at- 
tention to  this  difference,  because  it  involves  the 
question  of  the  influence  of  Roman  law  on  that  de- 
partment of  thought  with  which  both  systems  are 
concerned.    The  book  of  Grotius,  though  it  touches 
questions  of  pure  Ethics  in  every  page,  and  though 
it  is  the  parent  immediate  or  remote  of  innume- 
rable volumes  of  formal  morality,  is  not,  as  is  well 
known,  a  professed  treatise  on  Moral  Philosophy  ;  it 
is  an  attempt  to  determine  the  Law  of  Nature,  or 
Natural  Law.    Now,  without  entering  upon  the 
question,  whether  the  conception  of  a  Law  Natural 
be  not  exclusively  a  creation  of  the  Roman  juriscon- 
sults, we  may  lay  down  that,  even  on  the  admission 
of  Grotius  himself,  the  dicta  of  the  Roman  jurispru- 
dence as  to  what  parts  of  known  positive  law  must 
be  taken  to  be  parts  of  the  Law  of  Nature,  are,  if 
not  infallible,  to  be  received  at  all  events  with  the 
profoundest  respect.    Hence  the  system  of  Grotius 
is  implicated  with  Roman  law  at  its  very  foundation, 
and  this  connection  rendered  inevitable — what  the 
legal  training  of  the  writer  would  perhaps  have  en- 
tailed without  it — the  free  employment  in  every 
paragraph  of  technical  phraseology,  and  of  modes 
of  reasoning,  defining,  and  illustrating,  which  must 


S40 


CASUISTRY. 


c:tap.  ix 


sometimes  conceal  the  sense,  and  almost  always  th? 
force  and  cogency,  of  the  argument  from  the  reader 
who  is  unfamiliar  with  the  sources  whence  thev  have 
been  derived.  On  the  other  hand,  Casuistry  bor- 
rows little  from  Roman  law,  and  the  views  of  mo- 
rality contended  for  have  nothing  whatever  in  com- 
mon with  the  undertaking  of  Grotins.  All  that 
philosophy  of  right  and  wrong  which  has  become 
famous,  or  infamous,  under  the  name  of  Casuistry, 
had  its  origin  in  the  distinction  between  Mortal  and 
Venial  sin.  A  natural  anxiety  to  escape  the  awful 
consequences  of  determining  a  particular  act  to  be 
mortally  sinful,  and  a  desire,  equally  intelligible,  to 
assist  the  Roman  Catholic  Church  in  its  conflict  with 
Protestantism  by  disburdening  it  of  an  inconvenient 
theory,  were  the  motives  which  impelled  the  authors 
of  the  Casuistical  philosophy  to  the  invention  of  an 
elaborate  system  of  criteria,  intended  to  remove 
immoral  actions,  in  as  many  cases  as  possible,  out  of 
the  category  of  mortal  offences,  and  to  stamp  them 
as  venial  sins.  The  fate  of  this  experiment  is  matter 
of  ordinary  history.  We  know  that  the  distinc- 
tions of  Casuistry,  by  enabling  the  priesthood  to 
adjust  spiritual  control  to  all  the  varieties  of  human 
character,  did  really  confer  on  it  an  influence  with 
princes,  statesmen,  and  generals,  unheard  of  in  the 
iges  before  the  Reformation,  and  did  really  con- 
tribute largely  to  that  great  reaction  which  checked 
and  narrowed  the  first  successes  of  Protestantism. 
Hut  beginning  in  the  attempt,  not  to  establish,  but 


cn.vr.  ix. 


CASUISTRY. 


041 


to  evade — not  to  discover  n  principle,  but  to  escape 
a  postulate — not  to  settle  the  nature  of  right  and 
wrong,  but  to  determine  what  was  not  wrong  of  a 
particular  nature, — Casuistry  went  ontwith  its  dex- 
terous refinements  till  it  ended  in  so  attenuating  the 
moral  features  of  actions,  and  so  belying  the  moral 
instincts  of  our  being,  that  at  length  the  conscience 
of  mankind  rose  suddenly  in  revolt  against  it,  and 
consigned  to  one  common  ruin  the  system  and  its 
doctors.    The  blow,  long  pending,  was  finally  struck 
in  the  Provincial  Letters  of  Pascal,  and  since  the 
appearance  of  those  memorable  Papers,  no  moralist 
of  the  smallest  influence  or  credit  has  ever  avowedly 
conducted  his  speculations  in  the  footsteps  of  the 
Casuists.    The  whole  field  of  ethical  science  was 
thus  left  at  the  exclusive  command  of  the  writers 
who  followed  Grotius;  and  it  still  exhibits  in  an  ex- 
traordinary degree  the  traces  of  that  entanglement 
with  Roman  law  which  is  sometimes  imputed  as  a 
fault,  and  sometimes  the  highest  of  its  recommenda- 
tions, to  the  Grotian  theory.    Many  inquirers  since 
Grotius's  day  have  modified  his  principles,  and  many, 
of  course,  since  the  rise  of  the  critical  philosophy, 
have  quite  deserted  them;  but  even  those  who  have 
departed  most  widely  from  his  fundamental  assump- 
tions Lave  inherited  much  of  his  method  of  state- 
ment, of  his  train  of  thought,  and  of  his  mode  of 
illustration;  and  these  have  little  meaning  and  no 
point  to  the  person-  ignorant  of  Roman  jurispru- 
dence." 


842  METAPHYSICS  AXD  ROM  AX  LAW.      chap.  rs. 


I  have  already  said  that,  with  the  exception  of 
the  physical  sciences,  there  is  no  walk  of  knowledge 
which  has  been  so  slightly  affected  l>y  Roman  law 
as  Metaphysics.  The  reason  is  that  discussion  on 
metaphysical  subjects  has  always  been  conducted  in 
Greek,  first  in  pure  Greek,  and  afterwards  in  a  dia- 
lect of  Latin  expressly  constructed  to  give  expression 
to  Greek  conceptions.  The  modern  languages  have 
only  been  fitted  to  metaphysical  inquiries  by  adopt- 
ing this  Latin  dialect,  or  by  imitating  the  process 
which  was  originally  followed  in  its  formation.  The 
source  of  the  phraseology  which  has  been  always 
employed  for  metaphysical  discussion  in  modern 
times  was  the  Latin  translations  of  Aristotle,  in 
which,  whether  derived  or  not  from  Arabic  versions, 
the  plan  of  the  translator  was  not  to  seek  for  analo- 
gous expressions  in  any  part  of  Latin  literature,  but 
to  construct  anew  from  Latin  roots  a  set  of  phrases 
equal  to  the  expression  of  Greek  philosophical  ideas. 
Over  such  a  process  the  terminology  of  Roman  law 
can  have  exercised  little  influence;  at  most,  a  few 
Latin  law  terms  in  a  transmuted  shape  have  made 
their  way  into  metaphysical  language.  At  the  same 
time  it  is  worthy  of  remark  that  whenever  the  prob- 
lems of  metaphysics  are  those  which  have  been  most 
strongly  agitated  in  Western  Europe,  the  thought, 
if  not  the  language,  betrays  a  legal  parentage.  Few 
things  in  the  history  of  speculation  are  more  im- 
pressive than  the  fact  tint  no  Greek-speaking  people 
has  ever  felt  itself  seriously  perplexed  by  the  great 


chap.  ix.         THEOLOGY  AND  ROMAN  LAW.  343 

question  of  Free-will  and  Necessity.  I  do  not  pre- 
tend to  offer  any  summary  explanation  of  this,  but 
it  does  not  seem  an  irrelevant  suggestion  that  neither 
the  Greeks,  nor  any  society  speaking  and  thinking 
in  their  language,  ever  showed  the  smallest  capacity 
for  producing  a  philosophy  of  law.  Legal  science 
is  a  Roman  creation,  and  the  problem  of  Free-will 
arises  when  we  contemplate  a  metaphysical  concep- 
tion under  a  legal  aspect.  How  came  it  to  be  a 
question  whethe*  invariable  sequence  was  identical 
with  necessary  connection  ?  I  can  only  say  that  the 
tendency  of  Roman  law,  which  became  stronger  as 
it  advanced,  was  to  look  upon  legal  consequences  as 
united  to  legal  causes  by  an  inexorable  necessity,  a 
tendency  most  markedly  exemplified  in  the  defini- 
tion of  Obligation  which  I  have  repeatedly  cited, 
"•Juris  vinculum  quo  necessitate  adstringimur  alien* 
jus  solvendae  rei." 

But  the  problem  of  Free-will  was  theological  be- 
fore it  became  philosophical,  and,  if  its  terms  have 
been  affected  by  jurisprudence,  it  will  be  because 
Jurisprudence  has  made  itself  felt  in  Theology.  The 
great  point  of  inquiry  which  is  here  suggested  has 
never  been  satisfactorily  elucidated.  What  has  to  be 
determined,  is  whether  jurisprudence  lias  ever  served 
as  the  medium  through  which  theological  principles 
have  been  viewed;  whether,  by  Supplying  a  peculiar 
language,  a  peculiar  mode  of  reasoning  and  a  pecu- 
liar solution  of  many  of  the  problems  of  life,  it  has 
ever  opened  new  channels  in  which  theological  spec- 


844 


GREEK  AND  LATIN'  CTTURCIIES. 


Cli  K  P.  IX 


illation  could  flow  out  and  expand  itself.  For  the 
purpose  of  giving  an  answer  it  is  necessary  to  recol- 
lect what  is  already  agreed  upon  by  the  best  writers! 
as  to  the  intellectual  food  which  theology  first  assi- 
milated. It  is  conceded  on  all  sides  that  the  earliest 
language  of  the  Christian  Church  was  Greek,  and 
that  the  problems  to  which  it  first  addressed  itself 
"were  those  for  which  Greek  philosophy  in  its  later 
forms  had  prepared  the  way.  Greek  metaphysical 
literature  contained  the  sole  stock  of  words  and 
ideas  out  of  which  the  human  mind  could  provide 
itself  with  the  means  of  engaging  in  the  profound 
controversies  as  to  the  Divine  Persons,  the  Divine 
Substance,  and  the  Divine  Natures.  The  Latin  lan 
guage  and  the  meagre  Latin  philosophy  were  quite 
unequal  to  the  undertaking,  and  accordingly  the 
Western  or  Latin  speaking  provinces  of  the  Empire 
adopted  the  conclusions  of  the  East  without  disput- 
ing or  reviewing  them.  "Latin  Christianity,"  says 
Dean  Milman,  "  accepted  the  creed  which  its  narrow 
and  ban-en  vocabulary  could  hardly  express  in  ade- 
quate terms.  Yet,  throughout,  the  adhesion  of  Rome 
and  the  West  was  a  passive  acquiescence  in  the  dog- 
matic system  which  had  been  wrought  out  by  the 
prof< Hinder  theology  of  the  Eastern  divines,  rather 
than  a  vigorous  and  original  examination  on  her  part 
of  those  mysteries.  The  Latin  Church  was  the  scholar 
as  well  as  the  loyal  partisan  of  Athanasius."  But 
when  the  separation  of  East  and  West  became  wider, 
and  the  Latin-speaking  Western  Empire  began  to 


hhap.  ix.      PROBLEMS  OF  WESTERN  CNURCII. 


live  with  an  intellectual  life  of  its  own,  its  deference 
to  the  East  was  all  at  once  exchanged  for  the  a<nta» 
tion  of  a  number  of  questions  entirely  foreign  tc 
Eastern  speculation.  "  While  Greek  theology  (  Mil 
man,  Latin  Christianity,  Preface,  5  )  went  on  defi 
ning  with  still  more  exquisite  subtlety  the  Godhead 
and  the  nature  of  Christ  " — "  while  the  interminable 
controversy  still  lengthened  out  and  cast  forth  sect 
after  sect  from  the  enfeebled  community  " — the 
"Western  Church  threw  itself  with  passionate  ardour 
into  a  new  order  of  disputes,  the  same  which  from 
those  days  to  this  have  never  lost  their  interest  for 
any  family  of  mankind  at  any  time  included  in  the 
Latin  communion.  The  nature  of  Sin  and  its  transmis- 
sion by  inheritance — the  debt  owed  by  man  and  its 
vicarious  satisfaction — the  necessity  and  sufficiency 
of  the  Atonement — above  all  the  apparent  antago- 
nism between  Free-will  and  the  Divine  Providence — 
these  were  points  which  the  West  began  to  debate 
as  ardently  as  ever  the  East  had  discussed  the  arti- 
cles of  its  more  special  creed.  Why  is  it  then  that 
on  the  two  sides  of  the  line  which  divides  the  Greek- 
speaking  from  the  Latin-speaking  provinces  there  lie 
two  classes  of  theological  problems  so  strikingly  dif 
ferent  from  one  another  ?  The  historians  of  the 
Church  have  come  close  upon  the  solution  when  they 
remark  that  the  new  problems  were  more  "  practi- 
cal," less  absolutely  speculative,  than  those  which 
had  torn  Eastern  Christianity  asunder,  but  none  of 
them,  so  far  as  I  am  aware,  has  quite  reached  it.  ] 


ROMAN  LAW  IX  THE  WEST.         cn.vr.  ix 


affirm  without  hesitation  that  the  difference  "between 
the  two  theological  systems  is  accounted  for  by  the 
fact  that,  in  passing  from  the  East  to  the  West,  theo- 
logical peculation  had  passed  from  a  climate  of  Greek 
metaphysics  to  a  climate  of  Roman  law.  For  some 
centuries  before  these  controversies  rose  into  over- 
whelming importance,  all  the  intellectual  activity  of 
the  Western  Romans  had  been  expended  on  juris- 
prudence exclusively.  They  had  been  occupied  in 
applying  a  peculiar  set  of  principles  to  all  combina- 
tions in  which  the  circumstances  of  life  are  capable 
of  being  arranged.  No  foreign  pursuit  or  taste  call- 
ed off  their  attention  from  this  engrossing  occupa- 
tion, and  for  carrying  it  on  they  possessed  a  vocabu- 
lary as  accurate  as  it  was  copious,  a  strict  method  of 
reasoning,  a  stock  of  general  propositions  on  conduct 
more  or  less  verified  by  experience,  and  a  rigid  moral 
philosophy.  It  was  impossible  that  they  should  not 
select  from  the  questions  indicated  by  the  Christian 
records  those  which  had  some  affinity  with  the  or- 
der of  speculations  to  which  they  were  accustomed, 
and  that  their  manner  of  dealing  with  them  should 
borrow  something  from  their  forensic  habits.  Al- 
most everybody  who  has  knowledge  enough  of  Ro- 
man law  to  appreciate  the  Roman  penal  system,  the 
Roman  theory  of  the  obligations  established  by  Con« 
tract  or  Delict,  the  Roman  viewof  Debts  and  of  the 
modes  of  incurring,  extinguishing,  and  transmitting 
them,  the  Roman  notion  of  the  continuance  of  indi- 
vidual existencee  by  Universal  Succession,  may  be 


ohap.  ix.         THEOLOGY  AND  ROilAX  LAW. 


347 


trusted  to  say  whence  arose  the  frame  of  mind  to 
which  the  problems  of  Western  theology  proved  so 
congenial,  whence  came  the  phraseology  in  which 
these  problems  were  stated,  and  whence  the  descrip- 
tion of  reasoning  employed  in  their  solution.  It 
must  only  be  recollected  that  the  Roman  law  which 
had  worked  itself  into  Western  thought  was  neither 
the  archaic  system  of  the  ancient  city,  nor  the  prun- 
ed and  curtailed  jurisprudence  of  the  Byzantine  Em- 
perors ;  still  less,  of  course,  was  it  the  mass  of  rules, 
nearly  buried  in  a  parasitical  overgrowth  of  modern 
speculative  doctrine,  which  passes  by  the  name  of 
Modern  Civil  Law.  I  only  speak  of  that  philosophy 
of  jurisprudence,  wrought  out  by  the  great  juridical 
thinkers  of  the  Antonine  age,  which  may  still  be 
partially  reproduced  from  the  Pandects  of  Justinian, 
a  system  to  which  few  faults  can  be  attributed  ex- 
cept perhaps  that  it  aimed  at  a  higher  degree  of  ele- 
gance, certainty,  and  precision  than  human  affairs 
will  permit  to  the  limits  within  which  human  laws 
seek  to  confine  them. 

It  is  a  singular  result  of  that  ignorance  of  Roman 
law  which  Englishmen  readily  confess,  and  of  which 
they  an;  sometimes  not  ashamed  to  boast,  that  many 
English  writers  of  note  and  credit  have  been  led  by 
it  to  put  forward  the  most  untenable  of  paradoxes 
concerning  tlie  condition  of  human  intellect  during 
the  Roman  empire.  It  has  been  constantly  asserted, 
as  unhesitatingly  as  if  there  were  no  temerity  in  ad 
vancing  the  proposition,  that  from  the  close  of  the 


348    GREEK  AND  LATIN-SPEAKING  PROVINCES,    chaf.  ix 


Augustan  era  to  the  general  awnkeuing  of  interest 
on  the  points  of  the  Christian  faith,  the  mental  ener- 
gies of  the  civilised  world  were  smitten  with  a  para- 
lysis. Now  there  are  two  subjects  of  thought — tin 
only  two  perhaps  with  the  exception  of  physica 
science — which  are  able  to  give  employment  to  al 
the  powers  and  capacities  which  the  mind  possesses 
One  of  them  is  Metaphysical  inquiry,  which  knows 
no  limits  so  long  as  the  mind  is  satisfied  to  work  on 
itself ;  the  other  is  Law,  which  is  as  extensive  as  the 
concerns  of  mankind.  It  happens  that,  during  the 
very  period  indicated,  the  Greek-speaking  provinces 
were  devoted  to  one,  the  Latin-speaking  provinces 
to  the  other,  of  these  studies.  I  say  nothing  of  the 
fruits  of  speculation  in  Alexandria  and  the  East,  but 
I  confidently  affirm  that  Rome  and  the  West  had  an 
occupation  in  hand  fully  capable  of  compensating 
them  for  the  absence  of  every  other  mental  exercise, 
and  I  add  that  the  results  achieved,  so  far  as  w 
know  them,  were  not  unworthy  of  the  continuous 
and  exclusive  labor  bestowed  on  producing  them. 
Nobody  except  a  professional  lawyer  is  perhaps  in 
a  position  completely  to  understand  how  much  of 
the  intellectual  strength  of  individuals  Law  is  capable 
of  absorbing,  but  a  layman  has  no  difficulty  in  com- 
prehending why  it  was  that  an  unusual  share  of  the 
collective  intellect  of  Rome  was  engrossed  by  juris- 
prudence.   "  The  proficiency*  of  a  given  commuui- 


*  Cambridge  Essays,  I806 


ohai.  ix.   CAUSES  OF  IMPROVEMENT  IX  ROMAN  I  AW.  049 

ty  in  jurisprudence  depends  in  the  long  run  on  the 
same  conditions  as  its  progress  in  any  other  line  of 
inquiry ;  and  the  chief  of  these  are  the  proportion 
of  the  national  intellect  devoted  to  it,  and  the  length 
of  time  during  which  it  is  so  devoted.  Now,  a  com- 
bination of  all  the  causes,  direct  and  indirect,  which 
contribute  to  the  advancing  and  perfecting  of  a 
science  continued  to  operate  on  the  jurisprudence  of 
Rome  through  the  entire  space  between  the  Twelve 
Tables  and  the  severance  of  the  two  Empires, — and 
that  not  irregularly  or  at  intervals,  but  in  steadily 
increasing  force  and  constantly  augmenting  number. 
We  should  reflect  that  the  earliest  intellectual  exer- 
cise to  which  a  young  nation  devotes  itself  is  the 
study  of  its  laws.  As  soon  as  the  mind  makes  its  first 
conscious  efforts  towards  generalisation,  the  concerns 
of  every-day  life  are  the  first  to  press  for  inclusion 
within  general  rules  and  comprehensive  formulas. 
The  popularity  of  the  pursuit  on  which  all  the  ener- 
gies of  the  young  commonwealth  are  bent  is  at  the 
outset  unbounded ;  but  it  ceases  in  time.  The  mo- 
nopoly of  mind  by  law  is  broken  down.  The  crowd 
at  the  morning  audience  of  the  great  Roman  juriscon- 
sult lessens.  The  students  are  counted  by  hundreds 
instead  of  thousands  in  the  English  Inns  of  Court. 
Art,  Literature,  Science,  and  Politics,  claim  their 
share  of  the  national  intellect ;  and  the  practice  of 
jurisprudence  is  confined  within  the  circle  of  a  profes- 
sion, never  indeed  limited  or  insignificant,  but  at- 
tracted as  much  by  the  rewards  as  by  the  intrinsic 


350  CAUSES  OF  IMPROVEMENT  IN"  ROMAN"  LAW.  ohap.  ix 


recommendations  of  their  science.  This  succession 
of  changes  exhibited  itself  evenmore  strikingly  in 
Rome  than  in  England.  To  the  close  of  the  Republic 
the  law  was  the  sole  field  for  all  ability  except  the 
special  talent  of  a  capacity  for  generalship.  But  a 
new  stage  of  intellectual  progress  began  with  the  Au- 
gustan age,  as  it  did  with  our  own  Elizabethan  era. 
We  all  know  what  were  its  achievements  in  poetry 
and  prose  ;  but  there  are  some  indications,  it  should 
be  remarked,  that,  besides  its  efflorescence  in  orna* 
mental  literature,  it  was  on  the  eve  of  throwing  out 
new  aptitudes  for  conquest  in  physical  science.  Here, 
however,  is  the  point  at  which  the.  history  of  mind  in 
the  Roman  States  ceases  to  be  parallel  to  the  routes 
which  mental  progress  has  since  then  pursued.  The 
brief  span  of  Roman  literature,  strictly  so  called,  was 
suddenly  closed  under  a  variety  of  influences,  which 
though  they  may  partially  be  traced,  it  would  be  im 
proper  in  this  place  to  analyse.  Ancient  intellect 
was  forcibly  thrust  back  into  its  old  courses,  and  law 
again  became  no  less  exclusively  the  proper  sphere 
for  talent  than  it  had  been  in  the  days  when  the  Ro 
mans  despised  philosophy  and  poetry  as  the  toys  of  a 
childish  race.  Of  what  nature  were  the  external  in- 
ducements which,  during  the  Imperial  period,  tended 
to  draw  a  man  of  inherent  capacity  to  the  pursuits  of 
the  jurisconsult  may  best  be  understood  by  consider- 
ing the  option  which  was  practically  before  him  in 
the  choice  of  a  profession.  lie  might  become  a 
teacher  of  rhetoric,  a  commander  of  frontier-posts,  or 


ROMAN  LAW  IN  THE  EAST. 


351 


a  professional  writer  of  panegyrics.  The  only  olher 
walk  of  active  life  which  was  open  to  him  was  the 
practice  of  the  law.  Through  that  lay  the  approach 
to  wealth,  to  fame,  to  office,  to  the  council-chamber  of 
the  monarch — it  may  be  to  the  very  throne  itself. 

The  premium  on  the  study  of  jurisprudence  was 
so  enormous  that  there  were  schools  of  law  in  every 
part  of  the  Empire,  even  in  the  very  domain  of 
Metaphysics.  But,  though  the  transfer  of  the  seat 
of  empire  to  Byzantium  gave  a  perceptible  impetus 
to  its  cultivation  in  the  East,  jurisprudence  never 
dethroned  the  pursuits  which  there  competed  with 
it.  Its  language  was  Latin,  an  exotic  dialect  in  the 
Eastern  half  of  the  Empire.  It  is  only  of  the  West 
that  we  can  lay  down  that  law  was  not  only  the 
mental  food  of  the  ambitious  and  aspiring,  but  the 
sole  aliment  of  all  intellectual  activity.  Greek  phi- 
losophy had  never  been  more  than  a  transient  fash- 
ionable taste  with  the  educated  class  of  Rome  itself, 
and  when  the  new  Eastern  capital  had  been  created, 
and  the  Empire  subsequently  divided  into  two,  the 
divorce  of  the  Western  provinces  from  Greek  spec- 
ulation, and  their  exclusive  devotion  to  jurispru. 
deuce,  became  more  decided  than  ever.  As  soon 
then  as  they  ceased  to  sit  at  the  feet  of  the  Greeks 
and  began  to  ponder  out  a  theology  of  their  own, 
the  theology  proved  to  be  permeated  with  forensic 
ideas  and  couched  in  a  forensic  phraseology.  It  is 
certain  that  this  substratum  of  law  in  Western  the- 
ology lies  exceedingly  dee]).    A  new  set  of  Greek 


352        EDM  AX  LAW  IN  WESTERN  THEOLOGY,    cn.vp.  ix 


theories,  the  Aristotelian  philosophy,  made  their 
way  afterwards  into  the  West,  and  almost  entirely 
buried  its  indigenous  doctrines.  But  when  at  the 
Reformation  it  partially  shook  itself  free  from  their 
influence,  it  instantly  supplied  their  place  with  Law. 
It  is  difficult  to  say  whether  the  religious  system  of 
Calvin  or  the  religious  system  of  the  Arminiaus  has 
the  more  markedly  legal  character. 

The  vast  influence  of  this  specific  jurisprudence 
of  Contract  produced  by  the  Romans  upon  the  cor- 
responding department  of  modern  Law  belongs 
rather  to  the  history  of  mature  jurisprudence  than 
to  a  treatise  like  the  present.  It  did  not  make  itself 
felt  till  the  school  of  Bologna  founded  the  legal 
science  of  modern  Europe.  But  the  fact  that  the 
Romans,  before  their  Empire  fell,  had  so  fully  de- 
veloped the  conception  of  Contract  becomes  of  im- 
portance at  a  much  earlier  period  than  this.  Feu- 
dalism, I  have  repeatedly  asserted,  was  a  compound 
of  archaic  barbarian  usage  with  Roman  law;  no 
other  explanation  of  it  is  tenable,  or  even  intelligi- 
ble. The  earliest  social  forms  of  the  feudal  period 
differ  in  little  from  the  ordinary  associations  in  which 
the  men  of  primitive  civilisations  are  everywhere 
seen  united.  A  Fief  was  an  organically  complete 
brotherhood  of  associates  whose  proprietary  and 
personal  rights  were  inextricably  blended  together, 
It  had  much  in  common  with  an  Indian  Village  Com- 
munity and  much  in  common  with  a  Highland  clan. 
But  still  it  presents  some  phenomena  which  we  nevei 


otap.  ii.      CONTRACT-LAW  AND  FEUDALISM.  35S 

find  in  the  associations  which  are  spontaneously 
formed  by  beginners  in  civilisation.  True  archaic 
communities  are  held  together  not  by  express  rules, 
but  by  sentiment,  or,  we  should  perhaps  say,  by 
instinct ;  and  new  comers  into  the  brotherhood  are 
brought  within  the  range  of  this  instinct  by  falsely 
pretending  to  share  in  the  blood-relationship  from 
which  it  naturally  springs.  But  the  earliest  feudal 
communities  were  neither  bound  together  by  mere 
sentiment  nor  recruited  by  a  fiction.  The^tie  which 
united  them  was  Contract,  and  they  obtained  new 
associates  by  contracting  with  them.  The  relation 
of  the  lord  to  the  vassals  had  originally  been  settled 
by  express  engagement,  and  a  person  wishing  to 
engraft  himself  on  the  brotherhood  by  commendation 
or  infeudation  came  to  a  distinct  understanding  as 
to  the  conditions  on  which  he  was  to  be  admitted. 
It  is  therefore  the  sphere  occupied  in  them  by  Con- 
tract which  principally  distinguishes  the  feudal  in- 
stitutions from  the  unadulterated  usages  of  primitive 
races.  The  lord  had  many  of  the  characteristics  of 
a  patriarchal  chieftain,  but  his  prerogative  was  lim- 
ited by  a  variety  of  settled  customs  traceable  to  the 
express  conditions  which  had  been  agreed  upon 
when  the  infeudation  took  place.  Hence  flow  the 
chief  differences  which  forbid  us  to  class  the  feudal 
societies  with  true  archaic  communities.  They 
were  much  more  durable  and  much  more  various  ; 
more  durable,  because  express  rules  are  less  de- 
structible than  instinctive  habits,  and  more  various, 
23 


854  CONTRACT-LAW  AND  FEUDALISM. 


because  the  contracts  on  which  they  were  founded 
were  adjusted  to  the  minutest  circumstances  and 
wishes  of  the  persons  who  surrendered  or  granted 
away  their  lands.  This  last  consideration  may  serve 
to  indicate  how  greatly  the  vulgar  opinions  curren 
among  us  as  to  the  origin  of  modern  society  stand  in 
need  of  revision.  It  is  often  said  that  the  irregular 
and  various  contour  of  modern  civilisation  is  due  to 
the  exuberant  and  erratic  genius  of  the  Germanic 
races,  anyd  it  is  often  contrasted  with  the  dull 
routine  of  the  Roman  Empire.  The  truth  is  that 
the  Empire  bequeathed  to  modern  society  the  legal 
.conception  to  which  all  this  irregularity  is  attribu- 
table; if  the  customs  and  institutions  of  barbarians 
have  one  characteristic  more  striking  than  another 
it  is  their  extreme  uniformity. 


CHAPTER  X. 


TEE  EARLY  LUSTORY  OF  DELICT  AND  CRIME. 


The  Teutonic  Codes,  including  those  of  our  Anglo- 
Saxon  ancestors,  are  the  only  bodies  of  archaic  secu- 
lar law  which  have  come  down  to  us  in  such  a  state 
that  we  can  form  an  exact  notion  of  their  origiual 
dimensions.  Although  the  extant  fragments  of 
Roman  and  Hellenic  codes  suffice  to  prove  to  us 
their  general  character,  there  does  not  remain  enough 
of  them  for  us  to  be  quite  sure  of  their  precise  mag- 
nitude or  of  the  proportion  of  their  parts  to  each 
other.  But  still  on  the  whole  all  the  known  collec- 
tions of  ancient  law  are  characterised  by  a  feature 
which  broadly  distinguishes  them  from  systems  of 
mature  jurisprudence.  The  proportion  of  criminal 
to  civil  law  is  exceedingly  different.  In  the  German 
codes,  the  civil  part  of  the  law  has  trifling  dimen- 
sions as  compared  with  the  criminal.  Tin;  traditions 
which  speak  of  the  sanguinary  penalties  inflicted  by 
the  code  of  Draco  seem  to  indicate  that  it  had  the 
same  characteristic.    In  the  Twelve  Tables  alone, 


856 


PENAL  LAW  IX  AXCIEXT  CODES. 


produced  by  a  society  of  greater  legal  genius  and  at 
first  of  gentler  manners,  the  civil  law  has  something 
like  its  modern  precedence  ;  but  the  relative  amount 
of  space  given  to  the  modes  of  redressing  wrong, 
though  not  enormous,  appears  to  have  been  large. 
It  may  be  laid  down,  I  think,  that  the  more  archaic 
the  code,  the  fuller  and  the  minuter  is  its  penal  legis- 
lation. The  phenomenon  has  often  been  observed 
and  has  been  explained,  no  doubt  to  a  great  extent 
correctly,  by  the  violence  habitual  to  the  communi- 
ties which  for  the  first  time  reduced  their  laws  to 
writing.  The  legislator,  it  is  said,  proportioned  the 
divisions  of  his  wrork  to  the  frequency  of  a  certain 
class  of  incidents  in  barbarian  life.  I  imagine,  how- 
ever, that  this  account  is  not  quite  complete.  It 
should  be  recollected  that  the  comparative  barren- 
ness of  civil  law  in  archaic  collections  is  consistent 
with  those  other  characteristics  of  ancient  jurispru- 
dence which  have  been  discussed  in  this  treatise. 
Nine-tenths  of  the  civil  part  of  the  law  practised  by 
civilised  societies  are  made  up  of  the  Law  of  Persons, 
of  the  Law  of  Property  and  of  Inheritance,  and  ot 
the  Law  of  Contract.  But  it  is  plain  that  all  these 
provinces  of  jurisprudence  must  shrink  within  nar- 
rower boundaries,  the  nearer  we  make  our  approaches 
to  the  infancy  of  social  brotherhood.  The  Law  of 
Persons,  which  is  nothing  else  than  the  Law  of 
Status,  will  be  restricted  to  the  seamiest  limits  as 
long  as  all  forms  of  status  are  merged  in  common 
{subjection  to  Paternal  Power,  as  long  as  the  Wife 


chap.  x.  CRIMES  AND  WRONGS.  357 

has  no  rights  against  her  Husband,  the  Son  none 
against  his  Father,  and  the  infant  Ward  none  against 
the  Agnates  who  are  his  Guardians.  Similarly,  the 
rules  relating  to  Property  and  Succession  can  never 
be  plentiful,  so  long  as  land  and  goods  devolve  within 
the  family,  and,  if  distributed  at  all,  are  distributed 
inside  its  circle.  But  the  greatest  gap  in  ancient 
civil  law  will  always  be  caused  by  the  absence  of 
Contract,  which  some  archaic  codes  do  not  mention 
at  all,  while  others  significantly  attest  the  immatu- 
rity of  the  moral  notions  on  which  Contract  depends 
by  supplying  its  place  with  an  elaborate  jurispru- 
dence of  Oaths.  There  are  no  corresponding  reasons 
for  the  poverty  of  penal  law,  and  accordingly,  even 
if  it  be  hazardous  to  pronounce  that  the  childhood 
of  nations  is  always  a  period  of  ungoverned  violence, 
we  shall  still  be  able  to  understand  why  the  modern 
relation  of  criminal  law  to  civil  should  be  inverted 
in  ancient  codes. 

I  have  spoken  of  primitive  jurisprudence  as 
giving  to  criminal  law  a  priority  unknown  in  a  later 
age.  The  expression  has  been  used  for  convenience, 
but  in  fact  the  inspection  of  ancient  codes  shows  that 
the  law  which  they  exhibit  in  unusual  quantities 
is  not  true  criminal  law.  All  civilised  systems  agree 
in  drawing  a  distinction  between  offences  against  the 
State  or  Community  and  offences  against  the  Indi- 
vidual, and  the  two  classes  of  injuries,  thus  kept 
apart,  I  may  here,  without  pretending  that  the  terms 
have  always  been  employed  consistently  in  jurispir 


858  CRIMES  AXD  "WRONGS.  chap,  x 

dence,  call  Crimes  and  "Wrongs,  crimina  and  delicto. 
Kow  the  penal  Law  of  ancient  communities  is  not 
the  law  of  Crimes ;  it  is  the  law  of  Wrongs,  or,  to 
use  the  English  technical  word,  of  Torts.  The  per 
son  injured  proceeds  against  the  wrong-doer  by  an 
ordinary  civil  action,  and  recovers  compensation  in 
the  shape  of  money-damages  if  he  succeeds.  If  the 
Commentaries  of  Gaius  be  opened  at  the  place  where 
the  writer  treats  of  the  penal  jurisprudence  founded 
on  the  Twelve  Tables,  it  will  be  seen  that  at  the 
head  of  the  civil  wrongs  recoguised  by  the  Roman 
law  stood  Furtum  or  Theft.  Offences  which  we  are 
accustomed  to  regard  exclusively  as  crimes  are  ex- 
clusively treated  as  torts,  and  not  theft  only,  but 
assault  and  violent  robbery,  are  associated  by  the 
jurisconsult  with  trespass,  libel  and  slander.  All 
alike  gave  rise  to  an  Obligation  or  vinculum  juris, 
and  were  all  requited  by  a  payment  of  money.  This 
peculiarity,  however,  is  most  strongly  brought  out 
in  the  consolidated  Laws  of  the  Germanic  tribes. 
Without  an  exception  they  describe  an  immense 
system  of  money  compensations  for  homicide,  and 
•with  few  exceptions,  as  large  a  scheme  of  compensa- 
tion for  minor  injuries.  "  Under  Anglo-Savon  law," 
writes  Mr.  Kemble  {Anglo-Saxons,  i.  177),  "a  sum 
was  placed  on  the  life  of  every  free  man,  according 
to  his  rank,  and  a  corresponding  sum  on  every  wound 
that  could  be  inflicted  on  his  person,  for  nearly  every 
injury  that  could  be  done  to  his  civil  rights,  honour 
or  peace ;  the  sum  being  aggravated  according  to 


"HAP.  X. 


CRIMES  AXD  SINS. 


359 


adventitious  circumstances."  These  compositions 
are  evidently  regarded  as  a  valuable  source  of  in- 
come ;  highly  complex  rules  regulate  the  title  to 
them  and  the  responsibility  for  them ;  and,  as  I  have 
.  already  had  occasion  to  state,  they  often  follow  a 
very  peculiar  line  of  devolution,  if  they  have  not 
been  acquitted  at  the  decease  of  the  person  to  whom 
they  belong.  If  therefore  the  criterion  of  a  delict^ 
wrong,  or  tort  be  that  the  person  who  suffers  it,  and 
not  the  State,  is  conceived  to  be  wronged,  it  may  be 
asserted  that  in  the  infancy  of  jurisprudence  the 
citizen  depends  for  protection  against  violence  or 
fraud  not  on  the  Law  of  Crime  but  on  the  Law  of 
Tort. 

Torts-then  are  copiously  enlarged  upon  in  primi- 
tive jurisprudence.  It  must  be  added  that  Sins  are 
known  to  it  also.  Of  the  Teutonic  codes  it  is  almost 
unnecessary  to  make  this  assertion,  because  those 
codes,  in  the  form  in  which  we  have  received  them, 
were  compiled  or  recast  by  Christian  legislators. 
But  it  is  also  true  that  the  non-Christian  bodies  of  ar- 
chaic law  entail  penal  consequences  on  certain  classes 
of  acts  and  on  certain  classes  of  omissions,  as  be- 
ing violations  of  divine  jurisprudence  and  commands. 
The  law  administered  at  Athens  by  the  Senate  of 
Areopagus  was  probably  aspecial  religious  code,  and 
at  Home,  apparently  from  a  very  early  period,  the 
Pontifical  jurisprudence  punished  adultery,  sacrilege, 
and  perhaps  murder.  There  were  therefore  in  the 
Athenian  and  in  the  Roman  States  laws  punishing 


860 


CONCEPTION  OF  CRIME. 


CRAP.  X. 


sins.  There  were  also  laws  punishing  torts.  The  con- 
ception of  offence  against  God  produced  the  first  class 
of  ordinances  ;  the  conception  of  offence  against  one's 
neighbour  produced  the  second  ;  but  the  idea  of  of- 
fence against  the  State  or  aggregate  community  did  * 
not  at  first  produce  a  true  criminal  jurisprudence. 

Yet  it  is  not  to  be  supposed  that  a  conception 
so  simple  and  elementary  as  that  of  wrong  done  to 
the  State  was  wanting  in  any  primitive  society.  It 
seems  rather  that  the  very  distinctness  with  which 
this  conception  is  realised  is  the  true  cause  which  at 
first  prevents  the  growth  of  a  criminal  law.  At  all 
events,  when  the  Roman  community  conceived  itself 
to  be  injured,  the  analogy  of  a  personal  wrong  re-' 
ceived  was  carried  out  to  its  consequences  with  abso- 
lute literalness,  and  the  State  avenged  itself  by  a 
single  act  on  the  individual  wron^-doer.  The  result 
was  that,  in  the  infancy  of  the  commonwealth,  every 
offence  vitally  touching  its  security  or  its  interests 
was  punished  by  a  separate  enactment  of  the  legisla- 
ture. And  this  is  the  earliest  conception  of  a  crimen 
or  Crime — an  act  involving  such  high  issues  that  the 
State,  instead  of  leaving  its  cognisance  to  the  civil 
tribunal  or  the  religious  court,  directed  a  special 
law  or  privilegium  against  the  perpetrator.  Every 
indictment  therefore  took  the  form  of  a  bill  of  pains 
and  penalties,  and  the  trial  of  a  criminal  was  a 
proceeding  wholly  extraordinary,  wholly  irregular, 
wholly  independent  of  settled  rules  and  fixed  con- 
ditions. Consequently,  both  for  the  reason  that  the 


chap.  x.       ANCIENT  CONCEPTION  OF  CRIME. 


361 


tribunal  dispensing  justice  was  the  sovereign  State 
itself,  and  also  for  the  reason  that  no  classification  of 
the  acts  prescribed  or  forbidden  was  possible,  there 
was  not  at  this  epoch  any  Law  of  crimes,  any 
criminal  jurisprudence.  The  procedure  was  identi- 
cal with  the  forms  of  passing  an  ordinary  statute  ;  it 
was  set  in  motion  by  the  same  persons  and  conduct 
ed  with  precisely  the  same  solemnities.  And  it  is  to 
be  observed  that,  when  a  regular  criminal  law  with 
an  apparatus  of  Courts  and  officers  for  its  administra- 
tion had  afterwards  come  into  being,  the  old  pro- 
cedure, as  might  be  supposed  from  its  conformity 
with  theory,  still  in  strictness  remained  practicable  ; 
and,  much  as  resort  to  such  an  expedient  was  dis- 
credited, the  people  of  Rome  always  retained  the 
power  of  punishing  by  a  special  law  offences  against 
its  majesty.  The  classical  scholar  does  not  require 
to  be  reminded  that  in  exactly  the  same  manner  the 
Athenian  Bill  of  Pains  and  Penalties,  or  tiouyythia, 
survived  the  establishment  of  regular  tribunals.  It 
is  known  too  that  when  the  freemen  of  the  Teutonic 
races  assembled  for  legislation,  they  also  claimed  au- 
thority to  punish  offences  of  peculiar  blackness  or 
perpetrated  by  criminals  of  exalted  station.  Of  this 
nature  was  the  criminal  jurisdiction  of  the  Anglo- 
Saxon  Witena^emot. 

It  may  be  thought  that  the  difference  which  I 
have  asserted  to  exist  between  the  ancient  and  mod- 
ern view  of  penal  law  has  only  a  verbal  exigence. 
The  community,  it  may  be  said,  besides  interposing 


362 


AJSCIENT  PROCEDURE. 


CHAP.  X 


to  punish  crimes  legislatively,  Las  from  the  earliest 
times  interfered  by  its  tribunals  to  compel  the  wrong- 
doer to  compound  for  his  wrong,  and  if  it  does  this, 
it  must  always  have  supposed  that  in  some  way  it 
was  injured  through  his  offence.  But,  however  rig- 
orous this  inference  may  seem  to  us  now  a-days,  it  is 
very  doubtful  whether  it  was  actually  drawn  by  the 
men  of  primitive  antiquity.  How  little  the  notion  of 
injury  to  the  community  had  to  do  with  the  earliest 
interferences  of  the  State  through  its  tribunals,  is 
shown  by  the  curious  circumstance  that  in  the  origi- 
nal administration  of  justice,  the  proceedings  were 
a  close  imitation  of  the  series  of  acts  which  were 
likely  to  be  gone  through  in  private  life  by  persons 
who  were  disputing,  but  who  afterwards  suffered 
their  quarrel  to  be  appeased.  The  magistrate  care- 
fully simulated  the  demeanour  of  a  private  arbitrator 
casually  called  in. 

In  order  to  show  that  this  statement  is  not  a 
mere  fanciful  conceit,  I  will  produce  the  evidence  on 
which  it  rests.  Very  far  the  most  ancient  judicial 
proceeding  known  to  us  is  the  Legis  Actio  Sacra- 
menti  of  the  Romans,  out  of  which  all  the  later  Ro- 
man law  of  Actions  may  be  proved  to  have  grown. 
Gaius  carefully  describes  its  ceremonial.  Unmeaning 
and  grotesque  as  it  appears  at  first  sight,  a  little  at 
tention  enables  us  to  decipher  and  interpret  it. 

The  subject  of  litigation  is  supposed  to  be  in 
Court.  If  it  is  moveable,  it  is  actually  there.  If  it 
be  immoveable,  a  fragment  or  sample  of  it  is  brought 


cniP.  x.  THE  ROMAN  LEGIS  ACTIO.  3«i 


in  its  place ;  laud,  for  instance,  is  represented  by  a 
clod,  a  house  by  a  single  brick.  In  the  example 
selected  by  Gaius,  the  suit  is  for  a  slave.  The  pro- 
ceeding begins  by  the  plaintiffs  advancing  with  a 
rod,  which  as  Gaius  expressly  tells,  symbolised  a 
spear.  He  lays  hold  of  the  slave  and  asserts  a  right 
to  him  with  the  words,  "  JIuncego  kominem  ex  Jure 
Quiritium  meum  esse  dico  secundum  suam  causam 
sicut  dixi  ;  "  and  then  saying,  "  Ecce  tibi  Yindictam 
imjjosui, "  he  touches  him  with  the  spear.  The  defen- 
dant goes  through  the  same  series  of  acts  and. 
gestures.  On  this  the  Praetor  intervenes,  and  bids 
the  litigants  relax  their  hold,  "  Mittite  a  mho  homi- 
nem."  They  obey,  and  the  plaintiff  demands  from 
the  defendant  the  reason  of  his  interference,  "  Pos- 
tido  anne  dicas  qua  ex  causa  vindicaveris"  a  ques- 
tion which  is  replied  to  by  afresh  assertion  of  right, 
"  Jus  pereyi  sicut  vindictam  imposuV  On  this,  the 
first  claimant  offers  to  stake  a  sum  of  money,  called 
a  Sacramentum,  on  the  justice  of  his  own  case, 
"  Quando  tu  injuria  provocasti,  D  air  is  Sacramento 
te provoco"  and  the  defendant,  in  the  phrase,  "  Sim- 
Utter  ego  te"  accepts  the  wager.  The  subsequent 
proceedings  were  no  longer  of  a  formal  kind,  but  it  is 
to  be  observed  that  the  Praetor  took  security  for  the 
Sacramentum,  which  always  went  into  the  coffers  of 
the  State. 

Such  was  the  necessary  preface  of  every  ancient 
Ho  man  suit.  It  is  impossible,  1  think,  to  refuse  ;us- 
Bent  to  the  suggestion  of  those  who  see  in  it  a  dra- 


364  ANCIENT  SUIT  IN  HOMER. 


unitization  of  the  origin  of  Justice.  Two  armed  men 
are  wrangling  about  some  disputed  property.  The 
Praetor,  vir  pietate  gravis,  happens  to  be  going  by 
and  interposes  to  stop  the  contest.  The  disputants 
state  their  case  to  him,  and  agree  that  he  shall  arbi 
trate  between  them,  it  being  arranged  that  the  loser, 
besides  resigning  the  subject  of  the  quarrel,  shall  pay 
a  sum  of  money  to  the  umpire  as  a  remuneration 
for  his  trouble  and  loss  of  time.  This  interpretation 
would  be  less  plausible  than  it  is,  were  it  not  that, 
by  a  surprising  coincidence,  the  ceremony  described 
by  Gains  as  the  imperative  course  of  proceeding  in  a 
Legis  Actio  is  substantially  the  same  with  one  of 
the  two  subjects  which  the  God  Hephaestus  is  de- 
scribed by  Homer  as  moulding  into  the  First  Com- 
partment of  the  Shield  of  Achilles.  In  the  Homeric 
trial-scene,  the  dispute,  as  if  expressly  intended  to 
bring  out  the  characteristics  of  primitive  society,  is 
not  about  property  but  about  the  composition  for  a 
homicide.  One  person  asserts  that  he  has  paid  it, 
the  other  that  he  has  never  received  it.  The  point 
of  detail,  however,  which  stamps  the  picture  as  the 
counterpart  of  the  archaic  Roman  practice  is  the  re- 
ward designed  for  the  judges.  Two  talents  of  gold 
lie  in  the  middle,  to  be  given  to  him  who  shall  ex- 
plain the  grounds  of  the  decision  most  to  the  satis- 
faction of  the  audience.  The  magnitude  of  this  sum 
as  compared  with  the  trifling  amount  of  the  Sacra- 
mentum  seems  to  me  indicative  of  the  difference  be- 
tween fluctuating  usage  ard  usage  consolidated  into 


en  a  x. 


ANCIENT  VIEW  OF  PROCEDURE. 


365 


law.  The  scene  introduced  by  the  poet  as  a  striking 
and  characteristic,  but  still  only  occasional,  feature 
of  city-life  in  the  heroic  age  has  stiffened,  at  the 
opening  of  the  history  of  civil  process,  into  the  reg 
ular,  ordinary  formalities  of  a  lawsuit.  It  is  natura 
therefore  that  in  the  Legis  Actio  the  remuneration 
of  the  Judge  should  be  reduced  to  a  reasonable  sum, 
and  that,  instead  of  being  adjudged  to  one  of  a  num- 
ber of  arbitrators  by  popular  acclamation,  it  should 
be  paid  as  a  matter  of  course  to  the  State  which  the 
Prsetor  represents.  But  that  the  incidents  described 
so  vividly  by  Homer,  and  by  Gains  with  even  more 
than  the  usual  crudity  of  technical  language,  have 
substantially  the  same  meaning,  I  cannot  doubt ;  and, 
in  confirmation  of  this  view  it  may  be  added  that 
many  observers  of  the  earliest  judicial  usages  of  mod- 
ern Europe  have  remarked  that  the  fines  inflicted  by 
Courts  on  offenders  were  originally  sacramenta.  The 
State  did  not  take  from  the  defendant  a  composition 
for  any  wrong  supposed  to  be  done  to  itself,  but 
claimed  a  share  in  the  compensation  awarded  to  the 
plaintiff  simply  as  the  fair  price  of  its  time  ami 
trouble.  Mr.  Kemble  expressly  assigns  this  charac- 
ter to  the  Anglo-Saxon  hannum  or  fredum. 

Ancient  law  furnishes  other  proofs  that  the  ear- 
liest administrators  of  justice  simulated  the  probable 
acts  of  persons  engaged  in  a  private  quarrel.  In 
settling  the  damages  to  be  awarded,  they  took  as 
their  guide  the  measure  o.'  vengeance  likely  to  be 
exacted  by  an  aggrieved  person  under  the  circurr 


366 


OLD  ROMAX  LAW  OF  THEFT.  chap,  x 


stances  of  the  case.  This  is  the  true  explanation  of 
the  very  different  penalties  imposed  by  ancient  law 
on  offenders  caught  in  the  act  or  soon  after  it  and  ou 
offenders  detected  after  considerable  delay.  Some- 
strange  exemplifications  of  this  peculiarity  are  sup 
plied  by  the  old  Roman  law  of  Theft.  The  Laws 
of  the  Twelve  Tables  seem  to  have  divided  Thefts 
into  Manifest  and  Non-Manifest,  and  to  have  allotted 
extraordinarily  different  penalties  to  the  offence  ac- 
cording as  it  fell  under  one  head  or  the  other.  The 
Manifest  Thief  was  he  who  was  caught  within  the 
house  in  which  he  had  been  pilfering,  or  who  was 
taken  while  making  off  to  a  place  of  safety  with  the 
stolen  goods  ;  the  Twelve  Tables  condemned  him  to 
be  put  to  death  if  he  were  already  a  slave,  and,  if 
he  was  a  freeman,  they  made  him  the  bondsman  of 
the  owner  of  the  property.  The  Non-Manifest 
Thief  was  he  who  was  detected  under  any  other  cir- 
cumstances than  those  described  ;  and  the  old  code 
simply  directed  that  an  offender  of  this  sort  should 
refund  double  the  value  of  what  he  had  stolen.  In 
Gaius's  day  the  excessive  severity  of  the  Twelve  Ta- 
bles to  the  Manifest  Thief  had  naturally  been  much 
mitigated,  but  the  law  still  maintained  the  old  princi- 
ple by  mulcting  him  in  fourfold  the  value  of  the  stolen 
goods,  while  the  Non-Manifest  Thief  still  continued 
to  pay  merely  the  double.  The  ancient  lawgiver 
doubtless  considered  that  the  injured  proprietor,  if 
left  to  himself,  would  inflict  a  very  different  punish- 
ment when  his  blood  was  hot  from  that  with  which 


chap.  x.     ANCIENT  MEASURE  OF  PUXISIBIEXT.  367 


he  would  he  satisfied  when  the  Thief  was  detected 
after  a  considerable  interval ;  and  to  this  calculation 
the  legal  scale  of  penalties  was  adjusted.  The  prin- 
ciple is  precisely  the  same  as  that  followed  in  the 
Anglo-Saxon  and  other  Germanic,  codes,  when  they 
suffer  a  thief  chased  down  and  causrht  with  the 
booty  to  be  hanged  or  decapitated  on  the  spot, 
while  they  exact  the  full  penalties  of  homicide  from 
anybody  who  kills  him  after  the  pursuit  has  been 
intermitted.  These  archaic  distinctions  bring  home 
to  us  very  forcibly  the  distance  of  a  refined  from  a 
rude  jurisprudence.  The  modern  administrator  of 
justice  has  confessedly  one  of  his  hardest  tasks  before 
him  when  he  undertakes  to  discriminate  between 
the  degrees  of  criminality  which  belong  to  offences 
falling  within  the  same  technical  description.  It  is 
always  easy  to  say  that  a  man  is  guilty  of  man- 
slaughter, larceny,  or  bigamy,  but  it  is  often  mosi 
difficult  to  pronounce  what  extent  of  moral  guilt  he 
has  incurred,  and  consequently  what  measure  of 
punishment  he  has  deserved.  There  is  hardly  an} 
perplexity  in  casuistry,  or  in  the  analysis  of  motiv- 
which  we  may  not  be  called  upon  to  confront,  it 
we  attempt  to  settle  such  a  point  with  precision ; 
and  accordingly  the  law  of  our  day  shows  an  in- 
creasing tendency  to  abstain  as  much  as  possible 
from  laying  down  positive  rules  on  the  subject.  In 
Fi  ance  the  jury  is  left  to  decide  whether  the  offence 
which  it  finds  committed  has  been  attended  \yy  ei 
tenuating  circumstances;  in  Kngland,  a  nearly  un- 


363 


TRUE  CRIMINAL  JURISPRUDENCE. 


bounded  latitude  in  the  selection  of  punishments  is 
now  allowed  to  the  judge;  while  all  States  have  in 
reserve  an  ultimate  remedy  for  the  miscarriages  of 
law  in  the  Prerogative  of  Pardon,  universally  lodged 
with  the  Chief  Magistrate.  It  is  curious  to  observe 
how  little  the  men  of  primitive  times  were  troubled 
with  these  scruples,  how  completely  they  were  per- 
suaded that  the  impulses  of  the  injured  person  were 
the  proper  measure  of  the  vengeance  he  was  entitled 
to  exact,  and  how  literally  they  imitated  the  prob- 
able rise  and  fall  of  his  passions  in  fixing  their  scale 
of  punishment.  I  wish  it  could  be  said  that  their 
method  of  legislation  is  quite  extinct.  There  are, 
however,  several  modern  systems  of  law  which,  in 
cases  of  graver  wrong,  admit  the  fact  of  the  wrong- 
doer having  been  taken  in  the  act  to  be  pleaded  in 
justification  of  inordinate  punishment  inflicted  on 
him  by  the  sufferer — an  indulgence  which,  though 
superficially  regarded  it  may  seem  intelligible,  is 
based,  as  it  seems  to  me,  on  a  very  low  morality. 

Nothing,  I  have  said,  can  be  simpler  than  the 
considerations  which  ultimately  led  ancient  societies 
to  the  formation  of  a  true  criminal  jurisprudence. 
The  State  conceived  itself  to  be  wronged,  and  the 
Popular  Assembly  struck  straight  at  the  offender 
with  the  same  movement  which  accompanied  its 
legislative  action.  It  is  further  true  of  the  ancient 
world — though  not  precisely  of  the  modern,  as  I 
shall  have  occasion  to  point  out — that  the  earliest 
criminal  tribunals  were  merely  subdivisions,  or  com- 


tiiiAr.  x.  CRIMINAL  JURISDICTION  OF  LEGISLATURE.  3G9 


mittees,  of  the  legislature.  This,  at  all  events,  is 
the  conclusion  pointed  at  by  the  legal  history  of 
the  two  great  states  of  antiquity,  with  tolerable 
clearness  in  one  case,  and  with  absolute  distinctness 
in  the  other.  The  primitive  penal  law  of  Athens 
entrusted  the  castigation  of  offences  partly  to  the 
Archons,  who  seem  to  have  punished  them  as  torts, 
and  partly  to  tho  Senate  of  Areopagus,  which  pun- 
ished them  as  sins.  Both  jurisdictions  were  sub- 
stantially transferred  in  the  end  to  the  Helisea,  the 
High  Court  of  Popular  Justice,  and  the  functions  of 
the  Archons  and  the  Areopagus  became  either 
merely  ministerial  or  quite  insignificant.  But  "  Jle- 
iiaea"  is  only  an  old  word  for  Assembly  ;  thellelisea 
of  classical  times  was  simply  the  Popular  Assembly 
convened  for  judicial  purposes,  and  the  famous 
Dikasteries  of  Athens  were  only  its  subdivisions  or 
panels.  The  corresponding  changes  which  occurred 
at  Borne  are  still  more  easily  interpreted,  because 
the  Romans  confined  their  experiments  to  the  penal 
law,  and  did  not,  like  the  Athenians,  construct  pop- 
ular courts  with  a  civil  as  well  as  a  criminal  juris- 
diction. The  history  of  Roman  criminal  jurispru- 
dence begins  with  the  Old  Judicia  Populi,  at  which 
the  Kings  are  said  to  have  presided.  These  were 
simply  solemn  trials  of  great  offenders  under  legis- 
lative forms.  It  seems,  however,  that  from  an  early 
period  the  Comitia  had  occasionally  delegated  its 
criminal  jurisdiction  to  a  QuSBBtio  or  Commission, 
which  bore  much  the  same  relation  to  the  Assemble 

l2i 


S7u 


THE  QUjESTTON'ES. 


CHAP.  X 


which  a  Committee  of  the  House  of  Commons  bears 
to  the  House  itself,  except  that  the  Roman  Commis- 
sioners or  Qusestores  did  not  merely  report  to  the 
Comitia,  hut  exercised  all  powers  which  that  body 
was  itself  in  the  habit  of  exercising,  even  to  tin 
passing  sentence  on  the  Accused.  A  Qusestio  of 
this  sort  was  only  appointed  to  try  a  particulai 
offender,  but  there  was  nothing  to  prevent  two  or 
three  Qusestiones  sitting  at  the  same  time  ;  and  it  is 
probable  that  several  of  them  were  appointed  simul- 
taneously, when  several  grave  cases  of  wrong  to  the 
community  had  occurred  together.  There  are  also 
indications  that  now  and  then  these  Quaestiones  ap- 
proached the  character  of  our  Standing  Committees, 
in  that  they  were  appointed  periodically,  and  with- 
out waiting  for  occasion  to  arise  in  the  commission 
of  some  serious  crime.  The  old  Quaestores  Parri- 
cidii,  who  are  mentioned  in  connection  with  transac- 
tions of  very  ancient  date,  as  being  deputed  to  try 
(or,  as  some  take  it,  to  search  out  and  try)  all  cases 
of  parricide  and  murder,  seem  to  have  been  appointed 
regularly  every  year;  and  the  Duumviri  Perduel- 
lionis,  or  Commission  of  Two  for  trial  of  violent 
injury  to  the  Commonwealth,  are  also  believed  by 
most  writers  to  have  been  named  periodically,  Tiie 
delegations  of  power  to  these  latter  functionaries- 
bring  us  some  way  forwards.  Instead  of  being  ap- 
pointed when  and  as  state-offences  were  committed, 
they  had  a  general,  though  a  temporary  jurisdiction 
over  such  as  might  be  perpetrated.    Our  proximit) 


en  a  p.  x. 


Qf.ESTIOXES  PER  FETTLE. 


to  a  regular  criminal  jurisprudence  is  also  indicated 
by  the  general  terms  w  Pamcadium "  and  "Perdue! 
lio,"  which  mark  the  approach  to  something  like  a 
classification  of  crimes. 

The  true  criminal  law  did  not  however  come 
into  existence  till  the  year  B.C.  149,  when  L.  Cal- 
purnius  Piso  carried  the  statute  known  as  the  Lex 
Calpurnia  de  Repetundis.  The  law  applied  to  case? 
Repetundarum  Pecuniarum,  that  is,  claims  by  Pro- 
vincials to  recover  monies  improperly  received  by 
a  Governor-General,  but  the  great  and  permanen., 
importance  of  this  statute  arose  from  its  establish 
ing  the  first  Quaestio  Perpetua.  A  Quaestio  Perpetua 
was  a  Permanent  Commission  as  opposed  to  those 
which  were  occasional  and  to  those  which  were  tem- 
porary. It  was  a  regular  criminal  tribunal,  whose 
existence  dated  from  the  passing  of  the  statute  cre- 
ating it  and  continued  till  another  statute  should 
pass  abolishing  it.  Its  members  were  not  specially 
nominated,  as  were' the  members  of  the  older  Qu;e<- 
tioues,  but  provision  was  made  in  the  law  consti- 
tuting it  for  selecting  from  particular  classes  the 
judges  who  were  to  officiate,  and  for  renewing  them 
in  conformity  with  definite  rules.  The  offences  of 
which  it  took  cognisance  were  also  expressly  named 
and  defined  in  this  statute,  and  the  new  Quastio 
had  authority  to  try  and  sentence  all  persona  in 
future  whose  acts  should  fall  under  the  definitions 
of  crime  supplied  by  the  law.    It  was  therefore  a 


372 


HISTORY  OF  CRIMINAL  LAV.  chap,  x 


regular  criminal  judicature,  administering  a  true 
criminal  jurisprudence. 

The  primitive  history  of  criminal  law  divides 
itself  therefore  into  four  stages.  Understanding 
that  the  conception  of  Crime,  as  distinguished  from 
that  of  Wrong  or  Tort  and  from  that  of  Sin,  in- 
volves the  idea  of  injury  to  the  State  or  collective 
community,  we  first  find  that  the  commonwealth, 
in  literal  conformity  with  the  conception,  itself  inter- 
posed directly,  and  by  isolated  acts,  to  avenge  itself 
on  the  author  of  the  evil  which  it  had  suffered. 
This  is  the  point  from  which  we  start ;  each  indict- 
ment is  now  a  bill  of  pains  and  penalties,  a  special 
law  naming  the  criminal  and  prescribing  his  punish- 
ment. A  second  step  is  accomplished  when  the  mul- 
tiplicity of  crimes  compels  the  legislature  to  delegate 
its  powers  to  particular  Qugestiones  or  Commissions, 
each  of  which  is  deputed  to  investigate  a  particular 
accusation,  and  if  it  be  proved,  to  punish  the  par- 
ticular offender.  Yet  another  movement  is  made 
when  the  legislature,  instead  of  waiting  for  the  al- 
leged commission  of  a  crime  as  the  occasion  of  ap- 
pointing a  Qusestio,  periodically  nominates  Com- 
missioners like  the  Qiuestores  Parricidii  and  the 
Duumviri  Perduelliouis,  on  the  chance  of  certain 
classes  of  crimes  being  committed,  and  in  the  expec- 
tation that  they  will  be  perpetrated.  The  last 
stage  is  reached  when  the  Quaestiones  from  being 
periodica]  or  occasional  become  permanent  Benches 


chap.  x.  THE  QTJiESTIOXES  PERP9ETXLE. 


373 


or  Chambers — when  the  judges,  instead  of  being 
named  in  the  particular  law  nominating  the  Com- 
mission, are  directed  to  he  chosen  through  all  fut  ure 
time  in  a  particular  way  and  from  a  particular  class 
■ — and  when  certain  acts  are  described  in  general 
language  and  declared  to  be  crimes,  to  be  visited, 
in  the  event  of  their  perpetration,  with  specified 
penalties  appropriated  to  each  description. 

If  the  Quaestionea  Perpetual  had  had  a  longer 
history,  they  would  doubtless  have  come  to  be  re- 
garded as  a  distinct  institution,  and  their  relation  to 
the  Comitia  would  have  seeme.d  no  closer  than  the 
connection  of  our  own  Courts  of  Law  with  the 
Sovereign,  who  is  theoretically  the  fountain  of  jus- 
tice. But  the  Imperial  despotism  destroyed  them 
before  their  origin  had  been  completely  forgotten 
and  so  long  as  they  lasted,  these  Permanent  Com- 
missions were  looked  upon  by  the  Romans  as  the 
mere  depositaries  of  a  delegated  power.  The  cogni- 
sance of  crimes  was  considered  a  natural  attribute 
of  the  legislature,  and  the  mind  of  the  citizen  never 
ceased  to  be  carried  back  from  the  Qurcstiones  to 
the  Comitia  which  had  deputed  them  to  put  into 
exercise  some  of  its  own  inalienable  functions.  The 
view  which  regarded  the  QuaNtiones,  even  when 
they  became  permanent,  as  mere  Committees  of  the 
Popular  Assembly — as  bodies  which  only  ministered 
to  a  higher  authority — had  some  important  leg.-il 
Consequences  which  left  their  mark  on  the  criminal 
law  to  t he  very  latest  period.    One  immediate  result 


874  THEORY  OP  TITE  QUxESTIOXES.         chap,  x 

was  that  the  Comitia  continued  to  exercise  criminal 
jurisdiction  by  way  of  hill  of  pains  and  penalties, 
long  after  the  Quaestiones  had  been  established. 
Though  the  legislature  had  consented  to  delegate  its 
powers  for  the  sake  of  convenience  to  bodies  external 
to  itself,  it  did  not  follow  that  it  surrendered  them. 
The  Coraitia  and  the  Quaestiones  went  on  trying  and 
punishing  offenders  side  by  side ;  and  any  unusual 
outburst  of  popular  indignation  was  sure,  until  the 
extinction  of  the  Republic,  to  call  down  upon  its 
object  an  indictment  before  the  Assembly  of  the 
Tribes. 

One  of  the  most  remarkable  peculiarities  of  the 
institutions  of  the  Republic  is  also  traceable  to  this 
dependance  of  the  Quaestiones  on  the  Comitia.  The 
disappearance  of  the  punishment  of  Death  from  the 
penal  system  of  Republican  Rome  used  to  be  a  very 
favorite  topic  with  the^  writers  of  the  last  century, 
who  were  perpetually  using  it  to  point  some  theory 
of  the  Roman  character  or  of  modern  social  economy. 
The  reason  which  can  be  confidently  assigned  for  it 
stamps  it  as  purely  fortuitous.  Of  the  three  forms 
which  the  Roman  legislature  successively  assumed, 
one,  it  is  well  known — the  Comitia  Centuriata — was 
exclusively  taken  to  represent  the  State  as  embodied 
for  military  operations.  The  Assembly  of  the  Cen- 
turies, therefore,  had  all  powers  which  may  be  sup 
posed  to  be  properly  lodged  with  a  General  com 
Branding  an  army,  and,  among  them,  it  had  authority 
to  subject  all  offenders  to  the  same  correction  tc 


CHAP.  I. 


PUNISHMENT  OF  DEATH. 


375 


which  a  soldier  rendered  himself  liable  by  breaches 
of  discipline.  The  Comitia  Centuriata  could  there* 
fore  inflict  capital  punishment.  Not  so,  however, 
the  Comitia  Curiata  or  Comitia  Tributa.  They  were 
fettered  on  this  point  by  the  sacredness  with  which 
the  person  of  a  Roman  citizen,  inside  the  walls  of  the 
city,  was  invested  by  religion  and  law;  and,  with 
respect  to  the  last  of  them,  the  Comitia  Tributa,  we 
^cnow  for  certain  that  it  became  a  fixed  principle  that 
the  Assembly  of  the  Tribes  could  at  most  impose  a 
fine.  So  long  as  criminal  jurisdiction  was  confiued 
to  the  legislature,  and  so  long  as  the  assemblies  of 
the  Centuries  and  of  the  Tribes  continued  to  exercise 
co-ordinate  powers,  it  was  easy  to  prefer  indictments 
for  graver  crimes  before  the  legislative  body  which 
dispensed  the  heavier  penalties;  but' then  it  hap- 
pened that  the  more  democratic  assembly,  that  of  the 
Tribes,  almost  entirely  superseded  the  others,  and 
became  the  ordinary  legislature  of  the  later  Repub- 
lic. Now  the  decline  of  the  Republic  was  exactly 
the  period  during  which  the  Qurestiones  Perpetuoa 
were  established,  so  that  the  statutes  creating  them 
were  all  passed  by  a  legislative  assembly  which  itself 
could  not,  at  its  ordinary  sittings,  punish  ;i  criminal 
with  death.  It  followed  that  the  Permanent  Judicial 
Commissions,  holding  a  delegated  authority,  were  cir- 
cumscribed in  their  attributes  and  capacities  by  the 
limits  of  the  powers,  residing  with  tin;  body  w  hich 
deputed  them.  They  could  do  nothing  which  the 
Assembly  of  the  tribes  could  not  have  done  ;  and,  -.a 


o76 


PUNISHMENT  OF  DEATH. 


CIiAP.  t 


the  Assembly  could  not  sentence  to  death,  the  Qusbs 
tiones  were  equally  incompetent  to  award  capital 
punishment.  The  anomaly  thus  resulting  was  not 
viewed  in  ancient  times  with  anything  like  the  favour 
which  it  has  attracted  among  the  moderns,  and  in 
deed,  while  it  is  questionable  whether  the  Roman 
character  was  at  all  the  better  for  it,  it  is  certain  thai 
the  Roman  Constitution  was  a  great  deal  the  worse. 
Like  every  other  institution  which  has  accompanied 
the  human  race  down  the  current  of  its  history,  the 
punishment  of  death  is  a  necessity  of  society  in  cer- 
tain stages  of  the  civilising  process.  There  is  a  time 
when  the  attempt  to  dispense  with  it  baulks  both  of 
the  two  great  instincts  which  lie  at  the  root  of  all  pe- 
nal law.  Without  it,  the  community  neither  feels  that 
it  is  sufficiently  revenged  on  the  criminal,  nor  thinks 
that  the  example  of  his  punishment  is  adequate  to 
deter  others  from  imitating  him.  The  incompetence 
of  the  Roman  Tribunals  to  pass  sentence  of  death  led 
distinctly  and  directly  to  those  frightful  Revolution- 
ary intervals,  known  as  the  Proscriptions,  during 
which  all  law  was  formally  suspended  simply  because 
party  violence  could  find  no  other  avenue  to  the  ven- 
geance for  which  it  was  thirsting.  No  causo  contrib- 
uted so  powerfully  to  the  decay  of  political  capacity 
in  the  Roman  people  as  this  periodical  abeyance  of 
the  laws;  and,  when  it  had  once  been  resorted  to,  we 
need  not  hesitate  to  assert  that  the  ruin  of  Roman 
liberty  became  merely  a  question  of  time.  If  the 
practice  of  the  Tribunals  had  afforded  an  adequate 


chip.  x.  RESULTS  TRACEABLE  TO  THE  QL'^ESTIOXES.  877 

vent  for  popular  passion,  the  forms  of  judicial  pro- 
cedure would  no  doubt  have  been  as  flagrantly  per- 
verted as  with  us  in  the  reigns  of  the  later  Stuarts, 
but  national  character  would  not  have  suffered  as 
deeply  as  ifc  did,  nor  would  the  stability  of  Romar 
institutions  have  been  as  seriously  enfeebled. 

I  will  mention  two  more  singularities  of  the  Ro- 
man  Criminal  System  which  were  produced  by  the 
same  theory  of  judicial  authority.  They  are,  the  ex- 
treme multiplicity  of  the  Roman  criminal  tribunals, 
and  the  capricious  and  anomalous  classification  of 
crimes  which  characterised  Roman  penal  jurispru- 
dence throughout  its  entire  history.  Every  Qucextio, 
it  has  been  said,  whether  Perpetual  or  otherwise, 
had  its  origin  in  a  distinct  statute.  From  the  law 
which  created  it,  it  derived  its  authority;  it  rigo 
rously  observed  the  limits  which  its  charter  pre- 
scribed to  it,  and  touched  no  form  of  criminality 
which  that  charter  did  not  expressly  define.  As  then 
the  statutes  which  constituted  the  various  Qurestiones 
were  all  called  forth  by  particular  emergencies,  each 
of  them  being  in  fact  passed  to  punish  a  class  of  acts 
which  the  circumstances  of  the  time  rendered  par- 
ticularly odious  or  particularly  dangerous,  these  en- 
actments made  not  the  slightest  reference  to  each 
other,  and  were  connected  by  no  common  principle. 
Twenty  or  thirty  different  criminal  laws  were  in  ex 
istence  together,  with  exactly  the  same  number  of 
Qiuestiones  to  administer  them  ;  nor  was  any  al  tempt 
made  during  the  Republic  to  fuse  these;  distinct  ju- 


S78  RESULTS  TRACEABLE  TO  THE  QTJJESTIONES.  cn/.r.  x 


dicial  bodies  into  one,  or  to  give  symmetry  to  the  pro 
visions  of  the  statutes  which  appointed  them  and 
defined  their  duties.  The  state  of  the  Roman  crimi- 
nal jurisdiction  at  this  period,  exhibited  some  resem- 
blance to  the  administration  of  civil  remedies  in 
England  at  the  time  when  the  English  Courts  of 
Common  Law  had  not  as  yet  introduced  those  ficti- 
tious averments  into  their  writs  which  enabled  them 
to  trespass  on  each  other's  peculiar  province.  Like 
the  Qusestiones,  the  Courts  of  Queen's  Bench,  Com- 
mon Pleas,  and  Exchequer,  were  all  theoretical 
emanations  from  a  higher  authority,  and  each  enter- 
tained a  special  class  of  cases  supposed  to  be  com- 
mitted to  it  by  the  fountain  of  its  jurisdiction  ;  but 
then  the  Roman  Qusestiones  were  many  more  than 
three  in  number,  and  it  was  infinitely  less  easy  to 
discriminate  the  acts  which  fell  under  the  cognisance 
of  each  Qusestio,  than  to  distinguish  between  the  pro* 
vinces  of  the  three  Courts  in  Westminister  Hall. 
The  difficulty  of  drawing  exact  lines  between  the 
spheres  of  the  different  Quaestiones  made  the  multi- 
plicity of  Roman  tribunals  something  more  than  a 
mere  inconvenience;  for  we  read  with  astonishment 
that  when  it  was  not  immediately  clear  under  what 
general  description  a  man's  alleged  offence  ranged 
themselves,  he  might  be  indicted  at  once,  or  suc- 
cessively before  several  different  Commissions,  on 
the  chance  of  some  of  them  declaring  itself  compe- 
tent to  convict  him  ;  and,  although  conviction  by  one 
Qua3stio  ousted  the  jurisdiction  of  the  rest,  acquittal 


chap,  x. 


CLASSIFICATIONS  OF  CRIMES.  379 

by  one  of  them  could  not  he  pleaded  to  an  accusa- 
tion  before  another.    This  was  directly  contrary  to 
the  rule  of  the  Roman  civil  law  ;  and  we  may  be  sure 
that  a  people  so  sensitive  as  the  Romans  to  anomalies 
(or,  as  their  significant  phrase  was,  to  inelegancies) 
in  jurisprudence,  would  not  long  have  tolerated  it, 
had  not  the  melancholy  history  of  the  Qusestiones 
caused  them  to  be  regarded  much  more  as  temporary 
weapons  in  the  hands  of  factions  than  as  permanent 
institutions  for  the  correction  of  crime.    The  Empe 
rors  soon  abolished  this  multiplicity  and  conflict  of 
jurisdiction ;  but  it  is  remarkable  that  they  did  not 
remove  another  singularity  of  the  criminal  law  which 
stands  in  close  connection  with  the  number  of  the 
Courts.    The  classifications  of  crimes  which  are  con- 
tained  even  in  the  Corpus  Juris  of  Justinian  are  re- 
markably  capricious.    Each  Qaaestio  had,  in  fact, 
confined  itself  to  the  crimes  committed  to  its  cogni- 
sance by  its  charter.    These  crimes,  however,  were 
only  classed  together  in  the  original  statute  because 
they  happened  to  call  simultaneously  for  castigation 
at  the  moment  of  passing  it.  They  had  not  therefore 
anything  necessarily  in  common  ;  but  the  feet  of 
their  constituting  the  particular  subject-matter  of 
trials  before  a  particular  Quastio  impressed  itself  nat- 
urally  on  the  public  attention,  and  so  inveterate  did 
the  association  become  between  the  offences  men- 
tioned  in  the  same  statute  that,  even  w  hen  formal 
attempts  were  made  by  Sylla  and  by  the  Emperor 
Augustus  to  consolidate  the  Roman  criminal  law,  the 


380  LATER  LAW  OF  CRIMES.  chap,  x 


legislator  preserved  the  old  grouping.  The  Statutes 
of  Sylla  and  Augustus  were  the  foundation  of  the 
penal  jurisprudence  of  the  Empire,  and  nothing  can 
be  more  extraordinary  than  some  of  the  classifications 
which  they  bequeathed  to  it.  I  need  only  give  a 
single  example  in  the  fact  that  perjury  was  always 
classed  with  cutting  and  wounding  and  with  poison- 
ing, no  doubt  because  a  law  of  Sylla,  the  Lex  Cor- 
nelia de  Sicariis  et  Veneficis,  had  given  jurisdiction 
over  all  these  three  forms  of  crime  to  the  same  Per- 
manent Commission.  It  seems  too  that  this  capricious 
grouping  of  crimes  affected  the  vernacular  speech  of 
the  Romans.  People  naturally  fell  into  the  habit  of 
designating  all  the  offences  enumerated  in  one  law  by 
the  first  name  on  the  list,  which  doubtless  gave  its 
style  to  the  Law  Court  deputed  to  try  them  all.  All 
the  offences  tried  by  the  Qusestio  De  Adulteriis 
vvould  thus  be  called  Adultery. 

I  have  dwelt  on  the  history  aud  characteristics  of 
the  Roman  Quoestiones  because  the  formation  of  a 
criminal  jurisprudence  is  nowhere  else  so  instructive- 
ly exemplified.  The  last  Quaestiones  were  added  by 
the  Emperor  Augustus,  and  from  that  time  the  Ro- 
mans may  be  said  to  have  had  a  tolerably  complete 
criminal  law.  Concurrently  with  its  growth,  the  an- 
alogous process  had  gone  on,  which  I  have  called  the 
conversion  of  Wrongs  into  Crimes,  for,  though  the 
Roman  legislature  did  not  extinguish  the  civil  rem- 
edy for  the  more  heinous  offences,  it  offered  the  suf- 
fcrer  a  redress  which  he  was  sure  to  prefer.  Still, 


OHAP.  X. 


LATER  LAW  OF  CRIMES. 


381 


even  after  Augustus  had  completed  his  legislation, 
several  offences  continued  to  lie  regarded  as  Wrongs, 
which  modern  societies  look  upon  exclusively  a? 
crimes;  nor  did  they  become  criminally  punishable 
till  some  late  but  uncertain  date,  at  which  the  lav* 
began  to  take  notice  of  anew  description  of  offence? 
called  in  the  Digest  crimina  extmordinaria.  These 
were  doubtless  a  class  of  acts  which  the  theory  of 
Roman  jurisprudence  treated  merely  as  wrongs  ;  but 
the  growing  sense  of  the  majesty  of  society  revolted 
from  their  entailing  nothing  worse  on  their  perpetra 
tor  than  the  payment  of  money  damages,  and  accord- 
ingly the  injured  person  seems  to  have  been  permit- 
ted if  he  pleased,  to  pursue  them  as  crimes  extra  ordi- 
nem,  that  is,  by  a  mode  of  redress  departing  in  some 
respect  or  other  from  the  ordinary  procedure.  From 
the  period  at  which  these  crimina  extraor dinar ia 
were  first  recognised,  the  list  of  crimes  in  the  Ro- 
man States  must  have  been  as  long  as  in  any  com- 
munity of  the  modern  world. 

It  is  unnecessary  to  describe  with  any  minuteness 
the  mode  of  administering  criminal  justice  under  the 
Roman  Empire,  but  it  is  to  be  noted  that  both  its 
theory  and  practice  have  had  powerful  effect  on 
modern  society.  The  Emperors  did  not  immediately 
abolish  the  Qucestiones,  and  at  first  they  committed 
an  extensive  criminal  jurisdiction  to  tin-  Senate,  in 
which,  however  servile  it  might  show  itself  in  fact, 
the  Emperor  was  no  more  nominally  than  a  Senator 
like  *he  rest.    But  some  sort  of  collateral  criminal 


3)2      SOVEREIGN  THE  FOUNTAIN  OF  JUSTICE.     chap,  x 


jurisdiction  bad  been  claimed  by  the  Prince  from  the 
first ;  and  this,  as  recollections  of  the  free  common- 
wealth decayed,  tended  steadily  to  gain  at  the  ex 
pense  of  the  old  tribunals.  Gradually  the  punish- 
ment of  crimes  was  transferred  to  magistrates  directly 
nominated  by  the  Emperor,  and  the  privileges  of 
the  Senate,  passed  to  the  Imperial  Privy  Council, 
which  also  became  a  Court  of  ultimate  criminal  ap- 
peal. Under  these  influences  the  doctrine,  familiar 
to  the  moderns,  insensibly  shaped  itself  that  the 
Sovereign  is  the  fountain  of  all  Justice  and  the  de- 
positary of  all  Grace.  It  was  not  so  much  the  fruit 
of  increasing  adulation  and  servility  as  of  the  central- 
isation of  the  Empire  which  had  by  this  time  per- 
fected itself.  The  theory  of  criminal  justice  had,  in. 
fact,  worked  round  almost  to  the  point  from  which 
it  started.  It  had  besrun  in  the  belief  that  it  was 
the  business  of  the  collective  community  to  avenge 
its  own  wrongs  by  its  own  hand  ;  and  it  ended  in 
the  doctrine  that  the  chastisement  of  crimes  belonged 
in  an  especial  manner  to  the  Sovereign  as  represent- 
ative and  mandatary  of  his  people.  The  new  view 
differed  from  the  old  one  chiefly  in  the  air  of  awful- 
ness  and  majesty  which  the  guardianship  of  justice 
appeared  to  throw  around  the  person  of  the  Sove- 
reign. 

This  later  Roman  view  of  tin;  Sovereigns  rela- 
tion to  justice  certainly  assisted  in  saving  modern 
societies  from  the  necessity  of  travelling  through  the 
scries  of  changes  which  I  have  illustrated  by  the 


CHAP.  X. 


MODERN  HISTORY  OF  CRIMES. 


383 


history  of  the  Quoestiones.  In  the  primitive  law  of 
almost  all  the  races  which  have  peopled  Western 
Europe  there  are  vestiges  of  the  archaic  notion  that 
the  punishment  of  crimes  belongs  to  the  general 
assembly  of  freemen ;  and  there  are  some  States— 
Scotlaud  is  said  to  be  one  of  them — in  which  the 
parentage  of  the  existing  judicature  can  be  traced 
up  to  a  Committee  of  the  legislative  body.  But  the 
development  of  the  criminal  law  was  universally 
hastened  by  two  causes,  the  memory  of  the  Roman 
Empire  and  the  influence  of  the  Church.  On  the 
one  hand  traditions  of  the  majesty  of  the  Caesars, 
perpetuated  by  the  temporary  ascendency  of  the 
House  of  Charlemagne,  were  surrounding  Sovereigns 
with  a  prestige  which  a  mere  barbarous  chieftain 
could  never  otherwise  have  acquired,  and  were  com- 
municating to  the  pettiest  feudal  potentate  the  char- 
acter of  guardian  of  society  and  representative  of 
the  State.  On  the  other  hand,  the  Church,  in  its 
anxiety  to  put  a  curb  on  sanguinary  ferocity,  son- lit 

about  for  authority  to  punish  the  graver  mi-d  Is, 

and  found  it  in  those  passages  of  Scripture  which 
speak  with  approval  of  the  powers  of  punishment 
committed  to  the  civil  magistrate.  The  Xew  Tes 
tament  was  appealed  to  as  proving  that  secular 
rulers  exist  for  the  terror  of  evil-doers;  the  Old 
Testament,  ;i-  laying  down  that  "whoso  >heddeth 

man's  blood,  by  man  shall  his  bl  1   be  shed.1' 

There  can  be  no  doubt,  I  imagine,  that  modem  ideas 
ou  the  subject  of  crime  are  based  apoa  two  assump 


384   DOCTRINE  OF  TI1E  CHURCH  AS  TO  CRIMES,    chap,  x, 

tions  contended  for  by  the  Church  in  the  Dark 
Ages — first,  that  each  feudal  ruler,  in  his  degree, 
might  be  assimilated  to  the  Roman  Magistrates 
spoken  of  by  Saint  Paul ;  aud  next,  that  the  of 
?ences  which  he  was  to  chastise  were  those  selected 
for  prohibition  in  the  Mosaic  Commandments,  or 
rather  such  of  them  as  the  Church  did  not  reserve 
to  her  own  cognisance.  Hevesy,  supposed  to  be  in- 
cluded in  the  First  and  Second  Commandments, 
Adultery  and  Perjury  were  ecclesiastical  offences, 
and  the  Church  only  admitted  the  co-operation  of 
the  secular  arm  for  the  purpose  of  inflicting  severer 
punishment  in  cases  of  extraordinary  aggravation. 
At  the  same  time,  she  taught  that  murder  and 
robbery,  with  their  various  modifications,  were  un- 
der the  jurisdiction  of  civil  rulers,  not  as  an  accident 
of  their  position,  but  by  the  express  ordinance  of 
God. 

There  is  a  passage  in  the  writings  of  King  Alfred 
(Kemble,  ii.  209)  which  brings  out  into  remarkable 
clearness  the  struggle  of  the  various  ideas  that  pre- 
vailed in  his  day  as  to  the  origin  of  criminal  juris- 
diction. It  will  be  seen  that  x\lfred  attributes  it 
partly  to  authority  of  the  Church  and  partly  to 
that  of  the  AVitan,  while  he  expressly  claims  for 
treason  against  the  lord  the  same  immunity  from 
ordinary  rules  which  the  Roman  Law  of  Majestas 
nad  assigned  to  treason  against  the  Caesar.  "  After 
this  it  happened,"  he  writes,  "  that  many  nations 
received  the  faith  of  Christ,  and  there  were  many 


3hap.  x.  EXNtf  ALFRED  ON  CRIMINAL  JURISDICTION.  Sbfl 


synods  assembled  throughout  the  earth,  and  among 
the  English  pace  also  after  they  had  received  the 
faith  of  Christ,  both  of  holy  bishops  and  of  their 
exalted  Witan.  They  then  ordained  that,  out  of 
that  mercy  which  Christ  had  taught,  secular  lords, 
with  their  leave,  might  without  sin  take  for  every 
misdeed  the  lot  in  money  which  they  ordained ;  ex- 
cept in  cases  of  treason  against  a  lord,  to  which  they 
dared  not  assign  any  mercy  because  Almighty  God 
adjudged  none  to  them  that  despised  Him,  nor  did 
Christ  adjudge  any  to  them  which  sold  Him  to 
death ;  and  He  commanded  that  a  lord  should  be 
loved  like  Himself.'* 


INDEX. 


ADOPTION. 

Adoption,  fiction  of.  125. 

•  influence  of  the  sacra  gentilicia 
on  the  law  of,  6,  26. 

■        in  Hindoo  law,  188. 

Adprehensio ;  or  assumption  of  sove- 
reign power  in  a  newly  discovered 
country,  241. 

^Equitas,  the  tern:,  55.    See  Equity. 

JBqnus,  the  word,  56. 

Agnatic  and  cOgnatic  relationship, 
difference  between,  56,  141. 

Agnation  described,  142,  143. 

Agreement,  Roman  analysis  of,  312. 

Agri  vectiprales,  Roman  practice  of 
letting  out,  290. 

 limitrophi  of  the  Romans  on  the 

banks  of  the  Rhine  and  Dan- 
ube, 202. 

Alexander  the  Sixth,  Pope,  his  Bull, 
242. ' 

Alfred,  King,  his  remarks  on  criminal 
jurisdiction,  quoted,  384. 

Alienation  of  property,  ancient  dilli- 
culties  of,  262. 

 archaic  ceremonies  of,  264. 

Allodial  property,  of  the  ancient  Ger- 
mans, 221,  273. 

America,  United  States  of,  Declaration 
of  Independence  of,  91. 

Anglo-Saxons,  character  of  their  King- 
ship, 104. 

  their  law  of  succession,  271. 

 their  penal  law,  358,  361,  367. 

Arehon  of  Athens,  office  of  the,  9. 

Aristocracies,  origin,  of  the  rub-  of,  9. 

  those  of  Greece,  Iulv,  and  Asia 

Minor,  9. 

 difference  between  those  of  the 

East  and  West,  10,  11. 
»<— aristocracies  the  depositaries  audi 
administrators  of  the  law,  11.  I 


BOXORDM 

Aristocracies,  importance  >f  jt  iicial 

before  the  invention  of  rriULg,  12. 

 foundation  of  aristocracies,  127. 

Aristotle,  his  "Treatise  on  Rhetoric" 

referred  to,  72. 
Assignees  in  Bankruptcy,  succession 

of,  175. 
Athenian  wills,  190. 
Athens,  primitive  penal  law  of,  369. 
Augustus,  the  Kmperor.  his  alterations 

in  the  Roman  Law,  39,  40. 
Austin's  "Province  of  Jurisprudence 

Determined,"  referred  to,  6. 

Bayle  referred  to,  84. 

Benefices  of  the  invading  chiefs  of  tha 

Roman  Empire,  222. 

 transformation  of  the  Benefice 

into  the  hereditary  Fief,  223. 
Bengalee  Wills,  191. 
Bentham,  his  "  Fragment  on  Govern 

ment  "  referred  to,  6. 

 causes  of  his  influence  in  Eng 

land,  75. 

 the  Roman  counterpart  of  Ben 

thamism,  76. 

 his  theory  of  Jurisprudence,  1 13. 

 his  eulogy  of  the  Bull  of  Pops. 

Alexander  the  Sixth,  242. 
  Bentham  and  Austin's  rules  as  to 

the  essentials  of  a  contract 

312,313. 

Blaokstone,  Sir  William,  his  theory  of 

the  first  principles  of  law,  110. 
 his  justification  for  the  exclusion 

of  the  halt  blood,  1 10. 

  his  theory  of  the  origin  of  pro 

party  quoted,  'J  I  I. 

 his  theory  criticiseil,  246. 

lioiioium   l'ossessio  l'  the  Roman* 
204,  205. 


388 


IXDEX. 


BRACT0N 

Bractou,  his  Plagiarisms,  79. 
Burgundians,  the,  referred  to,  100. 

Caesar,  Julius,  his  contemplated  addi- 
tions to  the  Roman  Statute  Law,  40. 

Capet,  Hugh,  character  of  his  sove- 
reignty, 104. 

Capture  in  War,  sources  of  the  modern 
International  Law  of,  239. 

 ancient  Law  of,  240. 

Caracalla,  effect  of  his  constitution  in 
enlarging  the  Patria  Potestas,  139. 

Casuists,  the,  338. 

 comparison  of  their  system  with 

that  of  Grotius  and  his  school, 
339. 

 origin  of  Casuistry,  340. 

 blow  struck  at  Casuistry  by  Pas- 
cal. 341. 

Cessio  in  Jure  of  Property,  in  Roman 
and  in  English  Law,  2 V9. 

Cestui  que  Trust,  special  proprietor- 
ship created  for  the,  285. 

Chancellor,  the  Lord,  compared  with 
a  Roman  Praetor,  61,  62. 

Chancery,  Court  of,  in  England,  re- 
marks on  the,  42. 

 origin  of  its  system,  42,  43. 

Charlemagne,  his  claim  to  universal 
dominion,  102. 

 his  distribution  of  Benefices,  222. 

Children,  disinherison  of,  under  the 
Romans,  209. 

China,  cause  of  the  arrest  of  progress 
in,  24. 

Churches,  Eastern  and  Western,  con- 
clusions of  the  East  on  theological 
subjects  accepted  by  the  West  with- 
out dispute  or  review,  344. 

 problems  of  the  Western  Church, 

345. 

Cicero  referred  to,  58. 

  his  allusions  to  the  ancient.Ro- 

man  Sacra,  187. 
Code  Napoleon,  restraints  imposed  by 

it  on  the  testamentary  power,  171. 
Codes,  Ancient.  1. 

 sources  of  knowledge  afforded  by 

the  Greek  Homeric  poems,  2. 

 Themistes,  3,  4. 

— —  Hindoo  Laws  of  Menu,  5. 

 difference  between  Case-law  and 

Code-law,  13. 

 era  of  Codes,  13. 

 the  Twelve  Tables.  1,  2,  13. 

 tin- Codes  ol  Solon  and  Draco,  13. 


CONTRACT 

Codes,  importance  of  Codes  to  ancient 

societies,  15-18. 
Co-emption,  or  higher  form  of  civil 

marriage  of  the  ancient  Romans. 

149. 

Cognatic  relationship  described,  141, 
142. 

Co  heirs,  rights  and  duties  of,  176. 
  rights  of,  under  the  Roman  Law, 

220. 

Coloni  of  the  Romans,  224. 

 origin  and  situation  of  the,  290. 

Comitia  Calata,  ancient  Roman  execu- 
tion of  Wills  in  the,  193. 

.  end  of  the,  197. 

Comitia  Centuriata,  power  of  the.  374. 

 Curiata,  powers  of  the.  375. 

 Tributa,  powers  of  the,  oi5. 

Commentaries  of  the  Roman  lawyers, 
34. 

Common  law  of  England,  formerly  an 
unwritten  law,  12. 

  difference  between  Case-law  and 

Code-law,  13. 

 Case-law  and  its  anomalies  30. 

 similarity  between  English  Case- 
law  and  the  Kesponsa  PrudeD 
turn  of  the  Romans,  32. 
Confarreation,  or  religious  marriage 

of  the  ancient  Romans,  149. 
Consiantine,  the  Emperor,  his  improve 
ments  in  the  Law,  41. 

 his  modification   of  the  Patria 

Potestas,  138. 
Contract,  movement  of  societies  from 
Status  to,  1 64. 

 early  history  of,  295. 

 Contract  and  Political  Economy, 

296. 

 Rousseau's  doctrine  of  an  original 

Social  Contract,  299. 

 Montesquieu's  apologue  of  the 

Troglodytes,  301. 

 early  notions  of  Contract,  303. 

 Roman  Contracts,  304,  305. 

 specialising  process  in  ancient 

law,  306. 

 historical  alliance  between  Con- 
tracts and  Conveyances,  308. 

 changes  in  the  Nexum,  308. 

 Executory  Contracts   of  Pale, 

311. 

 primitive  association  of  Convey^ 

ances  and  Contracts,  311. 

 ancient  and  modern  doctrine  of 

Contracts,  313. 


IXDEX. 


389 


CONTRACT 

Contract,  the  Roman  Obligation,  313. 

 Roman  classification  of  Con- 
tracts, 315. 

 the  Verbal  Contract,  318. 

 the  Literal  or  Written  Contract, 

320. 

 the  Real  Contract,  321. 

 Consensual  Contracts,  322. 

 changes  in  Contract  law,  326, 

327. 

 history  of  the  progress  of  Con- 
tract law,  327. 

 Quasi-ContractS,  332. 

■  Contract  law  and  Fiefs,  352. 

Conveyances,  relation  of  Wills  to,  un- 
der the  Roman  Law,  197. 

 consequence  of   this  relation, 

199. 

 remedies,  200. 

 historical  alliance  between  Con- 
tracts and  Conveyances,  308. 

Co-ownership  of  property,  amongst 
the  Hindoos,  252,  253. 

 regarded  by  the  Roman  Law  as 

exceptional  and  momentary, 
253. 

Corporations  aggregate,  181 

—  sole,  leading  attribute  of,  181. 

"  Corpus  Juris  Civilis  "  of  Justinian, 65 

 resorted  to  by  English  Chancery 

judges,  42. 
Creation,  Greek  philosophical  expla- 
nation of  the  fabric  of,  52. 
Creditors,  cause  of  the  extravagant 
powers  given  to,  by  ancient  laws, 
311. 

Crimes  and  wrongs.  Sec  Delict  and 
Crime. 

Croatia,  co-ownership  of  the  villagers 
of,  259. 

Curatores  of  male  ( Irphans  under  the 

Roman  Law,  156. 
Curse,  inherited,  Greek  notion  of  an, 

123. 

Customary  Law,  ft. 

 Homeric  terms  for  customs,  5. 

 origin  of  customary  law,  8. 

 epoch  of  customary  law  and  its 

custody  bv  a  privileged  order, 

12. 

Cyclops,  Homer's  account  of,  quoted, 
120. 

Death,    disappearance   of,  from  the 
penal  r.rstcm  of  republican  Rome, 
874. 


DRACO 

Death,  causes  for  this,  374,  375. 
 death-punishment  a  necessity  in 

certain  stages  of  society,  376. 
Debtors,  cause  of  the  severity  of  an- 
cient laws  against,  311. 
Decretals,  forged,  motives  of  the  au- 
thor of  the,  79. 
Delict  and  Crime,  early  history  of,  355. 

 Renal  law  in  ancient  codes,  35b. 

Delict  and  Crime,  Crimes  and  Wrongs, 

crimina  and  delicta,  358. 
 and  Crime,  Furtum  or  Theft  of 

the  Roman  Law,  358,  366. 
 Wrongs  and  Sins  both  known  to 

primitive  jurisprudence,  359. 
 difference  between  the  ancient 

and    modern   conception  of 

Crime,  301. 
 the  Roman  Legis  Actio  Sacrs- 

menti,  362. 
 Homer's  description  of  an  ancient 

law-suit,  365. 
 primitive  penal  law  of  Athens, 

369. 

 old  Roman  criminal  jurispru- 
dence, 369. 

  the  Quaestiones,  369,  370. 

 Qua;stores  Parricidii,  370. 

 Duumviri  Perduellionis,  370. 

 the  first  true  Roman  Criminal 

law,  371. 

 the  primitive  history  of  criminal 

law,  372. 

 extreme  multiplicity  of  Roman 

criminal  tribunals,  377. 

 capricious  classification  of  crimes, 

379. 

 statutes  of  Svlla  and  Augustus, 

380. 

 later  law  of  crimes,  381. 

 crimina  extraordinaria,  381. 

 mode  of  administering  criminal 

justice  under  the  Roman  Em- 
pire, 382. 

 modern  history  of  crimes,  384. 

  King  Alfred  on  criminal  jurisdic- 
tion quoted,  384. 

Discovery,  considered  as  a  mode  of 
acquiring  dominion,  241. 

Dominion,  Its  nature,  limitation,  and 
mode  of  securing  it,  08 

 of  the  Unmans,  :;n7. 

Dower,  thfl  princ  iple  of,  Sngwfted  on 
the  Customary  Law  of  Western  Eu- 
rope, 218. 

Draco,  rudonosj  of  the  Code  of,  10 


390 


INDEX. 


DRACO 

Draco,  pei.al  laws  of,  355 
Dumoulin  referred  to,  82. 
Duruout's  "  Sophismes  Anarchiques," 

remarks,  88. 
Duumviri  Perduellionis,  the,  370. 

Edict  of  the  Roman  Praetor,  39,  54, 
60,  61,  63,  203,  284. 

Egypt,  Modern,  rule  of  succession  to 
the  throne  of,  235. 

Eldon,  Lord,  his  Chancellorship,  66. 

Eiphinstone's  "History  of  India" 
quoted,  255. 

Emphyteusis,  system  of,  289,  et  icq. 

—  rights  of  the  Emphyteuta,  '291. 

Emptor  Familia;.  See  Faniilia;  Emp- 
tor. 

England,  the  Land-law  of,  at  the  pres- 
ent time,  220. 

English  Common  Law,  formerly  an 
unwritten  law,  12. 

— — —  law,  hesitation  of  our  Courts  in 
declaring  principles  of,  38. 

Equality  of  men,  doctrine  of  the,  88. 

 as  understood  by  the  Roman  ju- 
risconsults, 89. 

 its  meaning  in  its  modern  dress, 

89. 

 ordinance  of  Louis  Ilutin  quoted, 

90. 

 declaration  of  American  Inde- 
pendence, 91. 

 assumption  of  the  Grotian  school, 

97. 

Equity,  early  history  of,  24. 

■  equity  considered  as  an  asrent  by 

which  the  adaptation  of  law  to 
social  wants  is  carried  on,  27. 

 meaning  of  the  term  equity,  27. 

 difference  between  equity  and 

legal  fictions,  27. 

 between  equity  and  leg- 
islation, 27,  28. 

 remarks  on  the  law  of  nature  and 

equity,  42,  et  seq. 

  the  English  Court  of  Chancery, 

42. 

 origin  of  its  system,  42,  43. 

■        the  equity  of  Rome,  43. 

•  origin  and  history  of  the  term 

"  Equity,"  55. 
the  terms  yEquitas  and  '!<t<!t7js, 

55. 

 picture  presented  to  the  Roman 

mind  by  the  word  "  Eouitv," 
57. 


FICTIONS 

Equity,  the  English  Chancellor  com 
pared  with  the  Roman  Praetor,  62. 
 exhaustion  of   the  power  of 

growth  in  Roman  Equity,  65. 
 features  common  to  English  and 

Roman  Equity,  65,  et  seq. 
 distinction   between  •  Law  and 

Equity  in  their  conceptions  of 

proprietary  right,  284. 
Ethics,  obligations  of,  to  the  Roman 
Law,  336. 

 the  Casuists',  338. 

 Grotius  and  his  school,  339. 

Familia,  meaning  of,  in  the  language 
of  the  ancient  Roman  Law,  "201. 

Familias  Emptor,  office  of  the,  199. 

  rights  aud  duties  pf  the,  199. 

 remarks  on  the  eNpression  Fa- 
milia; Emptor,  201. 

Family,  the,  of  Archaic  society,  128. 

  disintegration  of  the  Family,  163. 

 regarded  as  a  corporation,  179. 

 organisations  of  elementary  com- 
munities, 227. 

 Highland  chieftainship,  227. 

 Families,  not  Individuals,  known 

to  ancient  law,  250. 

 Indian,  Russian,  Croatian,  and 

Sclavonian  laws  respecting  the 
property  of  Families,  252-261. 

Feudal  view  of  the  ownership  of  prop- 
erty, 286. 

Feudal  services,  294. 

Feudalism,  its  connection  with  territo- 
rial sovereignty,  102. 

 feudal  organisation,  102,  103. 

 the  modern  Will  an  accidental 

fruit  of,  217,  218. 

 Feudalism    and   Contract  law, 

353. 

Fictions,  legal,  20,  22. 

 early  history  of,  22. 

 meaning  of  fictio  in  old  Roman 

Law,  24. 

 object  of  the  Jiclionei,  25. 

 instances  cited  from  the  English 

and  Roman  Law,  25. 
 their   former    importance  and 

modern  uselessness,  26,  27. 
 dillerenee  between  legal  fictions 

and  equity,  27. 
 and  between  legal  fictions  and 

legislation,  28. 

 instances  of  legal  fictions,  30. 

 Case-law  and  its  anomalies,  30. 


INDEX. 


3Di 


FIDEI-COMMISSA 

Fidei-Commissa,  or  Bequests  in  Trust, 

of  the  Roman  Law,  217. 
Fief's,  hereditary,  gradual  transforma- 
tion of  Benefices  into,  223. 

■  original  tenures,  223,  224. 

  laws  of  fiefs.  3c 8. 

Foreigners,  causes  of  immigration  of, 

into  ancient  Rome,  44,  45. 
 exclusion  of,  under  the  early  Ro- 
man republic,  46. 
France,  lawyers  and  judicial  science 
of,  77,  et  seq. 

 effects  of  the  alliance  between 

the  lawyers  and  the  kings,  on 
the  fortunes  of,  11,  18. 

 difference  between  the  Pays  du 

Droit  Coutumier  and  the  Pays 
duDroit  Fcrit,  81. 

 pre-eminence  given  in  France  to 

Natural  Law,  82. 

 Rousseau.  84. 

 the  Revolution,  88. 

Franks,  the,  referred  to,  100. 

 Roman  institution  of  the  Patria 

Potestas  not  known  to  the,  138. 
Freewill  and  Necessity,  question  of, 

unknown  to  the  Greeks,  295. 
Furtum,  or  Theft,  of  the  Roman  Law, 
358. 

Gaius  referred  to,  50. 

 his  description  of  the  institution 

of  the  Patria  Potestas,  131. 
 his  information  respecting  the 

Perpetual  Tutelage  ol  Women, 

148. 

 on  the  duplication  of  proprietary 

right,  referred  to,  286. 

Galatae,  the  Patria  Potestas  of  the,  131. 

Gens,  or  House,  of  the  Romans  com- 
pared with  the  Village  Community 
of  India,  256. 

Gentiles,  Roman,  their  rights  in  cases 
Of  Iatpstate  Succession,  214. 

German  law  of  Succession,  271. 

Germans.  Wills  of  the  ancient,  190, 
192. 

 penal  laws  of  the,  3  . 

 Patria  Potestas  of,  138. 

 primitive  property  of,  192. 

 the  ancient  law  of  allodial  prop- 
el ty,  221. 

"Germany''  ofTaeitus,  its  value,  116. 

 suspicions  as  to  its  fidelity,  117. 

 allodial  property  of,  272. 

Greece,  aristocracies  of,  10. 


msnoo 

Greek  theory  of  a  Law  of  Nature,  60. 

51. 

Greeks,  equality  of  laws  on  which  they 
prided  themselves,  56. 

 their  tendency  to  confound  law 

and  fact,  72. 
 their  notion  of  an  inherited  curse, 

123: 

 assistance  afforded  by,  in  the  for- 
mation of  the  Roman  codes, 
14. 

 limited  Patria  Potestas  of  the, 

131,  132. 

 metaphysics  of  the,  3-13,  344. 

 their  want  of  capacity  for  pro- 
ducing a  philosophy  of  law,  343. 
Grote,  Mr.,  his  "  History' of  Greece," 

referred  to,  4,  9. 
Grotius,  Hugo,  and  his  successors,  on 
International  law,  92. 

 his  doctrines,  96. 

 success  of  his  treatise  "  De  Jure 

Belli  et  Paris,"  107. 

 his  theory  of  a  Natural  State  and 

of  a  system  of  principles  con- 
genial to  it,  110. 

 his  moral  philosophy  and  that  of 

his  school,  339. 

 comparison  of  his  system  with 

that  of  the  Casuists,  340. 
Guardianship,  Perpetual  of  women, 
under  the  Roman  Law,  148. 

 amongst  the  Hindoos,  148. 

 amongst  the  Scandinavians,  148. 

Haereditas,  or  Inheritance,  definition, 
175. 

Bora  or  Heir,  his  rights  and  duties, 

170,  184,  220. 
Half-blood  relationship,  146. 

 the  rule  according  to  the  customs 

of  Normandy,  146. 
Ilaus-Gesetze  of  Germany,  225. 
Heirs,  rights  of,  under  the  Roman 

Law,  127,  INI,  220. 
Highland  chieftainship  hereditary,  227. 

 form  of  Primogeniture,  288, 

Hindoo  law.s  of  Menu,  5,  16,  17. 

 Customary  Law,  6. 

  law  of  Succession,  271. 

  difference  between  Inheritances 

und  Acquisitions,  272. 

 Perpetual  Tutelage  of  Women 

amongst  the,  14  7. 

 right  amongst  the,  to  inherit  a 

duad  man'*  properly,  lbti. 


392 


INDEX. 


HINDOO 

Hindoo,  the  Hindoo  sacra,  186. 

 the  Suttee,  187. 

 the  place  of  Wills  amongst  the 

Ilindoos  occupied  by  Adop- 
tions, 187. 

 rights    of   the   first-born  son 

amongst  the,  221. 

 primogeniture  of  the  Hindoos  in 

public  office  or  political  power, 
but  not  in  property,  226. 

Hindoos,  form  of  Ownership  of  Prop- 
erty amongst  the, — the  Village  Com- 
munity, 252. 

 Co-ownership,  253. 

 simplest  form   of  the  Village 

Community,  254,  257. 

 Acquisitions  of  Property  and 

Inheritances,  Hindoo  distinc- 
tion between,  272. 

Hobbes,  his  theory  of  the  origin  of 
law,  110. 

Homer,  his  account  of  the  Cyclops 

quoted,  120. 
 his  description  of  an  ancient  law- 
suit, 365. 

Homeric  poems,  rudimentary  jural 
ideas  nflOrded  by  the,  2,  3. 

 Themis  and  Themistes,  4. 

  Homeric  words  for  Custom,  5. 

India,  heroic  and  aristocratic  eras  of 
the  races  of,  9,  10. 

— —  laws  of  Menu,  5,  16,  17. 

 Customary  law  of,  6. 

 stage  beyond  which  India  has 

not  passed,  22. 

Inheritance  a  form  of  universal  suc- 
cession, 172. 

■  Roman  definition  of  an  Inherit- 
ance, 176. 

 old  Roman  law  of,  183. 

■  and  Acquisition,  Hindoo  differ- 
ences between,  272. 

Injunction  of  the  Court  of  Chancerv, 
284. 

Institutes  of  the  Roman  lawyers,  34. 

International  Law,  modern  contusion 
between  it  and  Jus  Gentium,  50. 

 function  of  the  Law  of  Nature  in 

giving  birth  to  modern  Inter- 
national Law,  92. 

 postulates  forming  the  founda- 

ti  m  of  International  Law,  92. 

  GrOtius  and  his  successors,  92. 

 Dominion,  98. 

 Louiiuiial  Sovereignty,  99. 


JTS  VATTRALE 

International  Law,  the  ante-Gi  otian 
system  of  the  Law  of  Nations,  105. 
 preparation  of  the  public  mind 

for  the  reception  of  the  Gro- 

tian  system,  106. 
 success  of  the  treatise  "De  Jure 

Belli  et  Pacis,"  l(i7. 
 points  of  junction  between  mod 

ern  public  law  and  territorial 

sovereignty,  1  u8. 
 sources  of  the  mode  in  case  ot 

Capture  in  War,  44. 
Intestacy.    See  Succession,  Intestate. 
'J<jot7)s,  the  Greek  principle  of,  55,  58. 
Italy,  aristocracies  of,  9. 
 codes  of,  16. 

 instability  of  society  in  ancient, 

45. 

 territorial  sovereignty  of  princes 

of,  103. 

Jews,  Wills  of  the,  191. 

Julianus,   Salvius,   the  Praetor,  hie 

Edict,  61. 

 effect  of  his  measures  on  the 

Prajtorian  Edicts,  63. 
Jurisconsults,  early  Roman,  36-38. 

 later,  40. 

 Natural  Law  of  the,  73. 

Jurisprudence,  golden  age  of  Roman, 

55. 

Jurists,  Roman,  period  of,  63,  65. 
Jus  Gentium,  origin  of,  45,  et  seq. 

 circumstances  of  the  origin  of, 

48. 

 how  regarded  by  a  Roman,  49 

 ami  by  a  modern  lawyer,  49. 

 difference  between  the  Jus  Gen- 
tium and  the  JusNaturale,  50, 
51. 

 point  of  contact  between  the  old 

Jus  Gentium  and  the  Jus  Nat- 
m  ale,  65. 

 difference  between  the  Jus  Gen- 
tium and  the  Quiiitarian  Law, 

56. 

 influence  of  the,  on  modern  civ- 
ilisation, 99. 

Jus  Feciale,  or  International  Law  of 
the  Romans,  50. 

Jus  Naturale,  or  Law  of  Nature,  60. 

  difference  between  the  Jus  Natu- 
rale and  the  Jus  Gentium,  50. 

 Greek  conceptions  of  Natuic  and 

her  law,  61. 

  point  of  contact  between  the  old 


INDEX. 


39< 


JU8  NATrr.AT.K 

Jus  Gentium  and  the  Law  of 
Nature,  55. 

Jus  Naturale,  modern  history  of  the 
Law  of  Nature,  70. 

 Natural  law  of  the  Roman  Juris- 
consults, 73. 

 ancient  counterpart  of  Bentham- 
ism, 76. 

 vastness  of  the  influence  of  the 

Law  of  Nature  on  modern  so- 
ciety, 76. 

 history  of  the  Law  of  Nature, 

77,  el  seq. 

 pre-eminence  given  to  Natural 

law  in  France,  82. 

 its  condition  at  the  middle  of  the 

18th  century,  88. 

 Rousseau,  84. 

 the  French  Revolution,  86. 

 equality  of  men,  89 

 function  of  the  Law  of  Nature  in 

giving  birth  to  modern  Inter- 
national Law,  92. 

>  sources  of  the  Modern  Interna- 
tional Law  of  Capture  in  War, 
239. 

Justinian's  "  Institutes  "  quoted,  44. 

 referred  to,  55. 

 "  Pandects  "  of,  64. 

 "  Corpus  Juris  Civilis  "  of,  65. 

 his  modifications  of  the  Patria 

Potestas,  138. 
 his  scale  of  Intestate  Succession, 

213. 

Kings,  origin  of  the  doctrine  of  the 

divine  right  of,  334. 
Kingship,  heroic,  origin  of,  9. 

Lacedaemonian  kings,  authority  of  the, 
9. 

Land-law  of  England  at  the  present 
day,  220, 

Land  and  goods,  English  distinction 

between,  274. 
Latifundia,  Roman  mode  of  cultivating 

the,  289. 

Law,  social  necessities  and  opinions 

always  in  advance  of,  23. 
— —  agencies  by  which  law  is  brought 
into  harmony  with  society,  24. 
 ancient  1<>'>. 

 theories  of  a  natural  state  and  of 

a  system  congenial  to  it,  lu9. 

 Grotius,  Blackstone,  Locke,  and 

llobbcs,  110.  I 


MEROVINGItX 

Law,  theory  of  Montesquieu,  111. 

 Bentham,  113. 

 dissatisfaction  with  existing  theo- 
ries, 114. 

 proper  mode  of  inquiry,  115. 

 the  Patriarchal  theory,"  11 8. 

 fiction  of  Adoption,  125. 

 the  archaic  Family,  128. 

 the  Patria  Potestas  of  the  Ro- 
mans, 130. 

 agnatic  and  cognatic  relation- 
ships, 141. 

 Guardianship  of  Women,  147. 

 ancient  Roman  Marriage,  149. 

 Master  and  Slave,  157. 

Leges  Barbarorum,  288. 

Leges  Cornelia;  of  Sylla,  39. 

Leges  Julia;  of  Augustus,  39,  40. 

Legis  Actio  Sacramenti  of  the  Romans 
described,  362. 

Legislation,  era  of,  24 

 considered  as  an  agent  by  which 

the  adaptation  of  law  to  the 
social  wants  is  carried  on,  28. 

 difference  between  it  and  legal 

fictions,  27,  28. 

Lex  Calpurnia  do  Repetundis,  the  first 
true  Roman  Criminal  Law,  371. 

Lex  PlsBtoria,  purport  of  the,  156. 

Lidi  of  the  Germans,  224. 

Local  Contiguity  as  the  condition  of 
community  in  political  functions. 
128. 

Locke,  John,  referred  to,  84. 

  his  theory  of  the  origin  of  law, 

110. 

Lombards,  referred  to,  110. 
Louis  llutin,  King  of  France,  his  ordi- 
nance  quoted,  90. 

Mahometan  Law  of  Succession,  235. 
Majority  and  Minority,  meaning  of  the 

terms  in  Roman  Law,  156. 
Mancipation,  Roman,  48,  198,  269, 

307. 

 mode  of  giving  the  effect  of 

Mancipation  to  a  Tradition 
270. 

Manns  of  the  Romans,  307. 
Marriage,  ancient  Unman,  149. 

 later  Rnmnn,  [50, 

Master  mill  Slave,  157. 

 under  the  Romnns,  157. 

 in  the  United  States,  168. 

Menu,  Hindoo  Laws  of,  5,  16,  17. 
Merovingian  kings  of  the  Franks,  100 


394 


INDEa. 


MTCTAYERS 

Metavers,  the,  of  the  south  of  Europe, 
291. 

"  Mouiteur,"  the,  during  the  period  of 
the  French  Revolution,  88. 

Montesquieu's  "  Esprit  des  Lois,"  re- 
marks on,  83. 

 his  Theory  of  Jurisprudence,  111. 

 Apologue  of  Montesquieu  con- 
cerning the  Troglodytes,  in  the 
"  Leitres  Persanes,"  301. 

Moral  doctrines,  early,  122. 

Mortgagor,  special  proprietorship  crea- 
ted by  the  Court  of  Chancery  for 
the,  285. 

Moses,  testamentary  power  not  provi- 
ded for  by  the  Laws  of,  191. 

Naples,  territorial  sovereignty  of  the 
monarehs  of,  104. 

Nations,  Law  of,  92,  et  seq.  See  In- 
ternational Law  and  Jus  Gentium. 

Nature  and  her  Law,  Greek  concep- 
tions of,  51. 

Nexumoi the  ancient  Romans,  46,  305. 

 changes  in  the,  306. 

Normandy,  customs  of,  referred  to,  146. 

No^of,  the  word  not  known  to  the  Ho- 
meric poems,  5. 

Nuncupatio,  of  the  Romans,  198. 

Obligations  of  the  Roman  Law,  313. 

 rights  and  duties  of,  314. 

Occupatio,  or  Occupancy,  of  the  Ro- 
man Law,  a  "natural  mode  of  ac- 
quiring property,"  238,  243. 

 things  which  never  had  an  owner, 

238. 

 things  which  have  not  an  owner, 

238. 

 Capture  in  war,  239. 

  Discovery,  241. 

  objections  to  the  popular  theory 

of  Occupancy,  248. 
Ordinance  of  Louis  Ilutin,  quoted,  90. 
Orphans,  Guardianship  of  male,  under 
the  Roman  Law,  154. 

Pactes  de  Famille  of  France,  225. 
Pascal,  his  "  Lcttres  Provinciales," 
341. 

Paterfamilias  in  elementary  commu- 

nilies,  227,  228 
Patria  Potestas,  the,  of  the  Romans, 

130. 

 of  the  Galatas,  131. 

 of  the  Greeks,  132. 


PR.ETOR  PEREGRIVUS 

Patria  Potestas,  causes  which  helped 
to  mitigate  the  stringency  of  the 
father's  power  over  the  persons  of 
his  children,  136. 

  liabilities  of  the  Paterfamilias, 

140. 

 unity  of  person  between  the 

Paterfamilias  and  the  Filius- 

familias,  140. 

 rights  and  duties  of  the  Pater 

familias,  140,  141,  227,  228. 

  the  Patria  Potestas  not  a  durable 

institution,  141. 

Patriarchal  theory  of  primeval  juris- 
prudence, 118. 

 chief  points  from  Scriptural  ac- 
counts, 119. 

 Homer's  account  of  the  Cyclops, 

120. 

Pays  du  Droit  Edit  and  Pays  du  Droit 
Coutumier,  difference  between  the 
81. 

Peculium,  the,  of  the  Romans,  137. 

 Castrense  Peculium,  137. 

  Quasi  castrense  Peculium,  132. 

Penal  law  in  ancient  codes,  355. 

Perjury,  how  punished  by  the  ancient 
Romans,  380. 

Persian  monarchy,  heroic  and  aristo- 
cratic eras  of  the  races  composing 
the,  10. 

Persians,  the  ancient,  their  veracity, 

8  . 

tier  is  of  the  Greeks,  meaning  of  the, 
51. 

Plebeian  Wills  of  the  Romans,  195. 
 legalised  by,  at  the  Twelve  Ta- 
bles. 196. 

  their  influence  mi  the  civilisation 

of  the  modern  world,  197. 
Political  ideas,  early,  124. 

 foundation  of  aristocracies,  127. 

Political  Economy  and  Contract,  296. 
Polygamy,  its  influence  on  Primogeni- 
ture, 236. 
Possessory  interdicts  of  the  Roman 

Law,  282. 
Prsetor,  origin  of  the  office  of,  59. 

 Edict  of  the,  39,  64,  60,  63. 

 the  Roman,  compared  with  nn 

Knglish  Chancellor,  61,  C,2. 

 restraints  on  the  Prtctor,  62. 

 the  Prrrtor  the  chief  equity  judge 

as  well  as  the  great  couimoD 

law  magistrate,  64. 
Praetor  Peregrinus,  office  of  the,  60. 


INDEX. 


395 


PRETORIA*  EDICT 

Prwtoiiau  Edict  of  the  Romans,  39, 

54,  60,  68. 

 Che  Edietum  Perpetunm,  60. 

 Hut  of  Salvias  Julian  ua,  61,  63 

  remedies  given  by  the,  284. 

Pretoriat]  Will,  the,  202. 

 desei  ibed,  203. 

Prescription  of  Property,  history  of, 

275,  et  seg. 
Primogeniture,  changes  in  Law  of 

Succession,  caused  by,  218. 

'        almost  destroyed  by  the  authore 

of  the  French  code,  219. 

 results  of  the  French  system, 

219. 

 rights  of   the    first  born  son 

amongst  the  Hindoos,  221. 

 early  history  of  Primogeniture, 

222. 

 Benefices,  222. 

 gradual  transformation  of  Bene- 
fices into  hereditary  Fiefs, 
223. 

 the  Pactes  do  Famille  of  France 

and  the  Ilaus-Gcsetze  of  Ger- 
many, 225. 

 causes  of  the  diffusion  of  Primo- 
geniture, 225. 

 Primogeniture  in  public  offices 

or  political  power  amongst  the 
Hindoos,  but  not  in  property, 
226. 

 ancient  forms  of  Primogeniture, 

 why  did  Primogeniture  gradually 

supersede  every  other  princi- 
ple of  Succession  '!  228. 

 earlier  and  later  Primogeniture, 

229,  230. 

  Hindoo  rule  of  the  eldest  sou  and 

of  i In-  eldest  line  also,  232. 
  Cellic   form  of  Primogeniture, 

233. 

 Mahometan  form,  234. 

 influence  of  Polygamy  on  Primo- 
geniture, 235. 
Progress,  c.iuses  of  the  arrest  of,  of 

the  greater  part  of  mankind,  74. 
Property,  early  history  of,  237. 

  "  natural  modes"  of  acquisition, 

237. 

 Occupancy,  '.'38. 

— —  Capture  in  War.  239. 

•  rule  of  Diseovei  y,  241. 

  history  of  tin'  oi  igin  of  propel  I  v, 

213.  | 


PROPFRTY 

Property,  lilackstone  on  the  tWory 
of  Occupancy  as  the  oiigin  of 
property,  244. 

 aphorism    of  Savigny   on  the 

origin  of  property.  217. 

 objections  to  the  popular  theory 

of  Occupancy,  248. 

 Co-ownei-ship  amongst  the  Hin- 
doos, 252. 

 the  Gens,  or  nousc  of  the  Ro- 
mans compared  with  the  Vil- 
lage Community  of  India, 
256. 

 Russian    viUage  co-ownership, 

258. 

 Croatian  and  Sclavonian  Laws 

respecting  the  property  of 
Families,  260. 

 ancient  difficulties  of  Alienation, 

263. 

 natural  classification  of  property 

265. 

  ancient  modes  of  transfer  of 

property,  268. 

 definition  of  the  Res  Mancipi, 

269. 

 Tradition  of  property,  270. 

 distinction  between  Res  Mancipi 

and  lies  nee  Mancipi,  27o. 

  Hindoo  Law  of  Inheritances  and 

Acquisitions,  878,  •j.",::. 

 law  of  moveables  and  law  of 

land,  aci  Iiiil'  I"  the  1  i  nu  ll 

Codes,  271. 

 and  in  England,  274. 

  Usucapion,  or  Prescription.  275. 

 Cessio  in  Jure,  or  recovery,  in 

a  Court  of  Law,  of  property 
sought  to  be  conveyed,  279. 

  influence  of  Courts  of  Law  and 

of  their  procedure  upon  Prop- 
erty, 280. 

 distinction  b'-twecu  Property  and 

Possession,  2M. 

 and  between  Law  and  Equity  in 

their  concept  hum  of  proprie- 
tary right,  under  the  lioman 
and  English  Law ,  "JH".. 

  feudal  view  of  <  tw  uership.  2S6. 

  Roman  and  baibnrian    law  of 

Ownership,  287. 

  (Ionian  sy»o  in  of  Tenancy,  289. 

 the  OtJml  of  the  BonMM  and 

the  Mctayc  ;s  o|  the  South  of 
Europe,  291. 

  rights  ol  the  Kn.pln  truLa,  291. 


396 


INDEX. 


PROPERTY 

Property,  the  Agri  f.imitrophi  of  the 
Rhine  and  the  Danube,  292. 

Proscriptions,  Roman,  origin  of  the, 
376. 

Pupilage  or  Wardship  in  modern  juris- 
prudence, 156. 
— —  compared  with  the  Guardianship 
of  Orphans  under  the  Roman 
Law,  156. 

Quasi-Contract,  332. 

■  Meaning  of,  in  Roman  Law,  333. 

Quasi,  meaning  of  the  word,  in  Roman 

Law,  333. 
Quaestiones  Perpetuas  of  the  Romans, 

371. 

 theory  of  the  Quaestiones,  373. 

 results  traceable  to  the  Quaesti- 
ones, 377,  378. 
Quaestores  Parricidii  of  the  ancient 

Romans,  370. 
Querela  Inofficiosi  Testamenti  of  the 

old  Rom;in  Law,  209. 
Quiritarian  Law,  the,  46. 

 principles  of  the,  56. 

 difference  between  it  and  the  Jus 

Gentium,  56. 

Recoveries,  collusive,  of  property  in 
the  Roman  and  English  Law,  280. 

Regency,  form  of,  according  to  the 
French  custom  regulating  the  suc- 
cession to  the  throne,  233. 

Reipus,  the,  of  Germany,  273. 

Res  Mancipi  and  Res  nec  Mancipi,  266, 
271. 

 definition  of  the  Res  Mancipi, 

269. 

Res  nullius  of  the  Roman  Law,  239. 

Responsa  Prudentium  of  the  Romans, 
described,  32. 

 similarity   between    them  and 

English  Case-law,  32. 

 decline  and  extinction  of  the 

Responses,  39. 

Revolution,  French,  effects  of  the  theo- 
ry of  the  state  of  Nature  on  the,  88. 

Rex  Sacrorum,  or  Hex  Sacrijiculus, 
office  of  the,  9,  59. 

Roman  Law,  1. 

.  the  Twelve  Tables,  1,  2,  13,  32. 

■  influence  of  the  sacra  on  the  law 

of  Adoption  and  of  Wills,  6. 
—-  class  of  codes  to  which  the  Roman 

code  belongs,  I  t 


KOMAN  LAW 

Roman  Law,  probable  assistance  af 
forded  by  Greeks,  14. 

 meaning  of  Jictio,  24. 

 instances  of  fctiones  cited,  25. 

 the  Responsa  Prudentium  de- 
scribed, 32. 

 judicial  functions  of  the  Magis- 
trates of  Republican  Rome,  34. 

 reasons  why  the  Roman  Law  wa< 

not  popularised,  35. 

 sources  of  the  characteristic  ex- 
cellence of  the  Roman  Law,  36 

 decline  and  extinction  of  the 

Responses,  39. 

 the  Praetorian  Edict,  39,  54,  60, 

63. 

 the  Leges  Cornelias,  40. 

 later  jurisconsults,  40. 

 remarks  on  the  Statute  Law  of 

the  Romans,  40-42. 
 and  on  the  Equitv  of  the  Romans. 

42,  43. 

 golden  age  of  Roman  jurispru- 

dence,  53. 

 Roman  Equity,  55,  64. 

 features  common  to  both  English 

and  Roman  Equity,  65,  et  seq. 

 International  Law  largely  in- 
debted to  Roman  Law,  93. 

 the  Patria  Potestas  of  the  Roman 

Law,  132,  et  seq. 

 Agnatic  and  Cognatic  Relation- 
ship, 141. 

 Perpetual  Tutelage  of  Women, 

147. 

 Roman  Marriage,  149. 

 Guardianship  of  male  Orphans, 

154. 

 Law  of  Persons — Master  and 

Slave,  156. 

 Testamentary  Law.  167,  et  seq. 

— «—  Wills  anciently  executed  in  the 

Comitia  Oalata,  193,  194. 
 ancient  Roman  law  of  Intestate 

Succession,  193. 

 Roman  Wills  described,  195. 

 the  Mancipation,  198. 

 the  Nuncupatio,  198. 

 the  Prretorian  Will,  202. 

 first  appearance  of  Sealing  in 

the  history  of  jurisprudence  as 

a  mode  of  authentication,  203. 
 Querela   Inofficiosi  Testamenti, 

209. 

 Disinherison  of  Children  under, 

209. 


INDEX. 


397 


BOMAV  LAW 

Roman  Law,  lntc=tate  Succession  un- 
der, 212. 

 Fidci-Commissa,  or  bequests  in 

trust,  217. 

 rights  of  Co-heirs,  220. 

 Occupancy,  238. 

 Roman  distinction  between  the 

Law  of  Persons  and  the  Law 
of  Things,  251. 

 influence  of  Roman  classifica- 
tions, 251. 

 Co-ownership  of  property  re- 
garded by  the  mature  Roman 
Law  as  exceptional  and  mo- 
mentary, 253. 

 the  Gens  of  the  Romans  com- 
pared with  an  Indian  Village 
Community,  256. 

 Res  Mancipi,  and  Res  nec  Man- 

cipi,  265,  266,  269. 

 Mancipation,  209. 

  Usucapion,  or  Prescription,  275. 

 the  Cessio  in  Jure,  279. 

 distinction  between  Property  and 

Possession,  281. 

—  Roman  and  Barbarian  Law, 
286. 

 Roman  Contracts,  304  et  seq. 

 the  Four  Contracts),  315. 

 connection    between  Theology 

and  Roman  Law,  343. 

 anises  of  improvement  in  Roman 

Law,  349. 

 Roman  Law  in  the  Eastern  Em- 
pire, 351. 

 Civil  Wrongs  of  the  Roman  Law, 

S58. 

 the  Legis  Actio  Sacramenti,  362. 

 old  Roman  Criminal  Jurispru- 
dence, 369. 

 extreme  multiplicity  of  Roman 

criminal  tribunals,  377.  * 

 results  traceable  to  the  Qurcs- 

tiones,  377,  378. 

Romans,  causes  of  the  rapid  progress 
of  the  Stoical  philosophy  amongst 
the,  63. 

 their  progress  in  legal  improve- 
ment, .VI. 

Rome,  immigration  of  foreigners  into, 
44,  45. 

 exclusion  of,  under  the  early  Re- 
public, 44. 

  See  of,  origin  of  th:  tendency  to 

attribute  secular  nuperiority  to 
the,  103. 


socTwrrs 

Rome,  decline  of  ecclesiastical  ioflu. 
ence  in  international  questions,  10? 

 early  political  ideas  of,  125. 

Rousseau,  J.  J.,  influence  of  his  writ- 
ings, 84. 

 his  doctrine  of  an  original  Social 

Compact,  299,  300. 
Russian  villages,  Co-ownership  of  th 
occupiers  of,  258. 

Sacra,  or  Familv  Rites,  of  '.he  Romans, 
6,  26,  185,  186. 

 of  the  Hindoos,  186. 

Sacramental  Action  of  the  ancient  Ro- 
mans, 46. 

Salic  Law,  origin  of  the,  152. 

Savignv,  on  Possession  and  Property, 
281,  282. 

 his  aphorism  on  the  origin  of 

property,  247. 

Scoevola,  Q.  Mucins,  his  Manual  of  the 
Civil  Law,  39. 

Scandinavian  nations,  their  laws  res- 
pecting the  Perpetual  Tutelage  of 
Women,  147,  154. 

Sclavonian  laws  respecting  the  proper 
ty  of  families,  260. 

Sealing,  first  appearance  of,  in  juris- 
prudence, as  a  mode  of  authenti- 
cation, 204. 

Sin,  mortal  and  venial,  casuistical  dis- 
tinction between,  340. 

Sins  known  to  primitive  jurisprudence, 
359. 

Slavery,  ancient,  157. 

 under  the  Romans,  157. 

 in  the  United  Slates  of  America, 

158. 

Socage,  English  law  of,  225. 

Social  Compact,  Rousseau's  doctrine 

of  an  original,  299,  833. 

  Dr.  Whewcll  quoted,  335. 

Societies,  stationary  and  progressive, 

21. 

 difference  between  stationary  and 

progressive  societies,  22. 

 agencies  by  which  Law  is  drought 

into  harmony  with  Progres* 
Hive  Societies,  24. 

—  perils  of  early,  72. 
 primitive,  1 16. 

 early  moral  doctrine-1,  122. 

—  early  political  ideas,  123. 

—  fiction  of  Adoption,  125. 

 foundation  of  aristocracies,  127 

 prlwtiph  of  Local  Continuity,  12;.. 


898 


INDEX. 


SOCIETIES 

Societies,  the  ancient  Family,  129. 

  the  Patria  Potestas,  130. 

 agnatic  and  c agnatic  relation- 
ships, 141. 

 Guardianship  of  Women,  147. 

 ancient  Roman  Marriage,  149. 

 Master  and  .Slave,  157. 

  uniformity  of  movement  of  the 

progressive  societies,  103. 

 disintegration  of  the  Family,  163. 

 movement    of   societies  from 

status  to  contract,  164. 

■  Universal  Succession,  172,  174, 

176. 

 primitive  society  and  universal 

succession,  178. 
 the  ancient  family  a  corporation, 

178. 

Society  in  primitive  times  not  a  col- 
lection of  individuals,  but  an  ag- 
gregation of  families,  121. 

Solon,  Attic  code  of,  15. 

"  Sophismes  Anarchiques  "  of  Dumont, 
remarks  on,  88. 

Sovereign,  origin  of  the  doctrine  that 
the  monarch  is  the  fountain  of 
justice,  382. 

Sovereignty,  territorial,  proposition  of 
International  Law  on,  98,  99. 

 Tribe-sovereignty,  100. 

 Charlemagne  and  universal  do- 
minion, 102. 

 Territorial  sovereignty  an  off- 
shoot of  feudalism,  102. 

 the  See  of  Rome,  103. 

 Hugh  Capet,  104. 

 the  Anglo-Saxon  princes,  104. 

 Naples,  Spain,  and  Italy,  104. 

  Venice,  104. 

  points  of  junction  between  terri- 
torial sovereignty  and  modern 
public  law,  108. 
Spain,  territorial  sovereignty  of  the 

monarchsof,  104. 
Status,  movement  of  societies  from,  to 

contract,  164,  105. 
Statute  Law  of  the  Romans,  40,  44. 
Stoic  philosophy,  principles  of  the, 

62. 

  its  rapid  progress  in  Roman  so- 
ciety, 52. 

 allian.e  of  the  Roman  lawyers 

with  the  Stoics,  53. 
Succession,  rules  of,  according  to  the 

Hindoo  Customary  law,  6. 
 Testamentary,  ]  00. 


srerpssioN 
Succession,  early  history,  106. 
 influence  of  the  Church  in  eii 

forcing  the  sanctity  of  Wills, 

168. 

 English  law  of.  108. 

 qualities  necessarily  attached  to 

Wills,  109. 

 natural  right  of  testation,  171. 

 restraints  imposed  by  the  Code 

Napoleon,  171. 

 nature  of  a  Will,  172. 

 rights  and  duties  of  universal 

successor,  172. 

 usual  Roman  definition  of  an  In- 
heritance, 170. 

  difference  between  modern  testa- 
mentary jurisprudence  and  the 
ancient  law  of  Rome,  177. 

 the  Family  regarded  as  a  Corpo- 
ration, 178. 

 old  Roman  law  of  Inheritance 

and  its  notion  of  a  Will,  183. 

 ancient  objects  of  Wills,  184. 

  Sacra,  or  Family  Rites,  of  the 

Romans,  185. 

 and  of  the  Hindoos,  186. 

 the  invention  of  Wills  due  to 

Romans,  188. 

 Roman  ideas  of  Succession,  189. 

 Testamentary  Succession  less  an- 
cient than  Intestate  Succession, 
189. 

 primitive  operation  of  Wills, 

190. 

 Wills  of  the  ancient  Germans, 

190. 

 Jewish  and  Bengalee  Wills,  191. 

 mode  of  execution  of  ancient 

Roman  wills,  193. 

 description   of  ancient  Roman 

Wills,  194,  195. 

 influence   of  ancient  Plebeian 

Wills  on  the  civilisation  of  the 
modern  world,  197 

—  the  Mancipation,  198. 

—  relation  of  Wills  to  conveyances, 
198. 

 the  Testament  per  as  et  libraui 

198,  207. 

—  consequence  of  this  relation  of 
Testaments  to  Conveyances, 
199. 

 remedies,  200. 

—  ancient  Wills  not  written,  201. 
 remarks  on  the  expression  Emp- 
tor Familio,  201. 


INDEX. 


898 


sucrKPSiojf 
Succession,  ihe  Praetorian  Will,  220. 
 the  Bonorum  Possessio  and  the 

Bonorum  Possessor,  204. 
 improvements  in  the  old  Will. 

205,  200. 

 ancient  and  modern  ideas  re- 
specting Wills  and  Successors, 
2i  >9. 

 Disinherison  of  Children,  209. 

 the  age  of  Wills  coeval  with  that 

of  feudalism,  217. 

 introduction  of  the  principle  of 

Dower,  218. 

 l  ights  of  Heirs  and  Co  hcii-s 

under  the  Roman  Law,  220. 

 [ntestate,  189. 

 ancient  Roman  law  of,  193,  212. 

 the  Justiuiaucau  scale  of  Intes- 
tate Succession,  213. 

 order  of   Intestate  Succession 

among  the  Romans,  214. 

 horror  of  intestacy  felt  by  the 

Romans,  216. 

 rights  of  all  the  children  of  the 

deceased  under  the  Roman 
Law,  220. 

 Universal,  172,  184. 

 in  what  it  consists,  172. 

 the  universal  successor,  170. 

 formula  of  old  Roman  investi- 
ture referred  to,  184. 

Suttee  of  the  Hindoos,  188. 

Sylla,  L.  Cornelius,  his  improvements 
in  the  Roman  Law,  40. 

Tahles,  the  Twelve  Deccmviral,  L  2 
13,  32. 

 collections  of  opinions  interpre- 
tative of  the,  33. 

 their  legalisation    of  Plebeian 

WtUa,  19(5. 
  Law  of  the  Twelve  Tables  re- 
specting Testamentary  Dispo- 
sitions, 210. 
Tablets,  laws  engraven  on,  13. 
Tacitus,  value  of  his  "  Germany  "  as  a 
record  of  primitive  history,  110. 

 suspicions  as  lo  its  fidelity,  117. 

Tanpiiiw,  change  in  the  administration 
of  the  law  after  the  expulsion  of 
the,  69. 

Tenancy,  Roman  ~_v--t.ui  of,' L'H'.i. 
Tisf.iments.     See    Succession,  Testa- 
mental  v. 

Theft,  ancient  Roman  law  of  298 
800,  307. 


WOMEN* 

Theft,  modern  breaches  of  trust,  298 
Themis  and  Themistcs  of  the  Greek 

Homeric  poems,  4,  120,  121. 
Theology,  connection  between  it  and 

Romau  Law,  343. 
Thirty  Years'  War,  influence  of  the 

horrors  of  the,  on  the  success  of  the 

treatise  "  De  Jure  Belli  et  Pacis  " 

of  Groiius,  107. 
Torts,  law  of,  358. 

Tradition  of  property  amongst  the 

Romans,  269. 

 practical  effect  of  a  Mancipation 

given  to  a  Tradition,  269. 
Transfer  of  propertv,  ancient  modes 

of,  268. 
Troglodytes,  the,  301. 
Turkey,  rule  of  succession  to  the 

throne  of,  235. 

Ulpian,  his  attempt  to  distinguish  he- 
tween  the  Jus  Xaturale  and  the  Jus 
Gentium,  50. 

L'ui  ve>  sit.is  juris,  in  what  it  consists, 
173. 

Usucapion,  principle  of  Roman  Law 

known  as,  205. 

 history  of,  276. 

Usus,  or  lower  form  of  civil  marriage 

of  the  ancient  Romans,  149. 

Vandals,  the,  referred  to,  100. 

Venetians,  their  lapse  from  tribe  sov- 
ereignty to  territorial  sovereignty. 
H'l. 

Village  Communities  of  India,  252 
254. 

Visigoths,  the,  referred  to,  100. 

Voltaire,  referred  to,  84. 

Warfare,  ancient  forms  of,  240. 
Wehrgeld,  the,  of  Germanv,  272. 
Whewell,  Dr.,  on  original  Social  Com- 
pact, quoted,  835. 

  his  view  of  Moral  Philosophy, 

336. 

Widow's  share  of  her  husband's  c-tatc, 
218. 

 the   reipus,  or  tine  leviable  on 

the  remarriage  of  a  » idow  iu 

Germany,  278. 

Wills,  influence  <>t  the  Surra  drnti 

liria  on  the  |nw  of,  6, 
-  See  Succession,  Testamentary. 
Women,  laws  respecting  the  hiatus  of 

147. 


400 


INDEX. 


WOMEN 

Women,  Roman  law  of  the  Perpetual 
Tutelage  of,  147. 

 amongst  the  Hindoos,  148. 

 and  amongst  the  Scandinavians, 

148. 

 Guardianship  of  Women  under 

the  Roman  Law,  147. 

— —  tutelage  of,  amongst  the  Hin- 
doos, 148. 


ZECS 

Women,   tutelage  of,  amongst  ih» 

Scandinavians,  148. 

 ancient  Roman  Marriage,  149. 

 later  Roman  Marriage,  149. 

 special   Proprietorship  created 

bv  the  Court  of  Chanceiy  for, 

286. 

Zeus,  not  a  lawmak<  r,  but  a  judge,  A 


